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The lives of the chief justices of Engia 





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LIVES 



OF THE 



CHIEF JUSTICES OF ENGLAND. 



THE LIVES 



OF 



THE CHIEF JUSTICES 



OF 



ENGLAND. 



BY 

LORD CAMPBELL, 

AUTHOR OF 
'THE LIVES OF THE LORD CHANCELLORS OF ENGLAND.' 



IN FOUR VOLUMES. 

VOL. III. 



NEW-YORK: 

JAMES COCKCROFT & CO. 

1873- 



^^<2/;^ 




LIST OF ILLUSTRATIONS. 

PASE 

Lord Chief Justice Holt, .... Frontispiece. 

Lord Chief Justice Raymond, . . . . 8i 

Lord Chief Justice Willes, ..... i6i 
Lord Chief Justice Mansfield, ... aog 



CONTENTS 

OF 
THE THIRD VOLUME. 

CHAPTER XXIII. 

LIFB OF LORD CHIEF JUSTICE HOLT, FROM HIS BIRTH TILL THB 

COMMENCEMENT OF HIS CONTESTS WITH THE 

TWO HOUSES OF PARLIAMENT. 

Services and Character of Sir John Holt, i. His Fatiier, 2. His Birth, 
2. At School, 3. His Early Excesses, 3. He acts the part of a Wizard, 4. 
He studies Law at Gray's Inn, 5. He is called to the Bar, 6. His pro- 
fessional Progress, 5. He is a Whig, 7. He is Counsel for the Earl of 
Danby and the Catholic Peers charged with being concerned in the 
Popish Plot, 7. He acts as Junior to Jeffreys in a Prosecution for Libel, 
8. He is Counsel for Lord Russell, g. As Counsel at the bar he "got: 
the whole Hog," 9. His Argument in Earl of Macclesfield v. Starkey, 10. 
Attempt to seduce him by James II., 11. He is appointed Recorder of 
London, made King's Sergeant, and Knighted, 11. He refuses to abet 
the arbitrary Measures of his King, and is dismissed from the office of 
Recorder, 12. He is continued in his office of King's Sergeant, 12. 
Landing of the Prince of Orange, 13. He acts as Assessor to the Peers, 
13. He is elected a Member of the Convention Parliament, 14. Con- 
ference between the two Houses on " Abdication " and " Desertion," 14. 
Holt's Speech as a Manager for the Commons, 14. He takes the Oaths 
to William and Mary, i6. He is appointed Chief Justice of the King's 
Bench, 17. His Merits as a Judge, 18. He is praised by the Tatler, 19. 
His Reporters, 20. His celebrated Judgment in Coggs v. Bernard, 21. 
He lays down the Doctrine that a Slave becomes free by breathing the 
Air of England, 22. His Construction of the Statute requiring Persons 
1.0 attend their Parish Churches, 23. He puts an end to the Practice of 
giving Evidence against a Prisoner of prior Misconduct, and of trying 
Prisoners in Fetters, 24. Holt's Influence with his Brother Judges, 24. 
Weight of his Opinion with the Public, 25. His Conduct in presiding at 
the Trial of State Prosecutions, 21. Trial of Lord Preston for High 



Tiii CONTENTS. 

Treason, 26. Rex v. Chamock, 28. Rex v. Rookwood, 28. Vindication 
of Holt for the Law laid down by him in Sir John Freind's Case, 29. 
Liberty of the Press in the Reign of Queen Anne, 31. 

CHA.P'TER XXIV. 

CONTINUATION OF THE LIFE OF LORD CHIEF JUSTICE HOLT 

TILL THE TERMINATION OF HIS CONTESTS WITH 

THE TWO HOUSES OF PARLIAMENT. 

Holt's Contest with the House of Lords in Rex v. Knowllys, 32. He is 
summoned before a Committee of Privileges, 34. His Popularity from 
his Triumph over the House of Lords, 36. The Banker's Case, 37. On 
the Removal of Lord Somers, Holt refuses to be Lord Chancellor, 39. 
He is a Lord Commissioner of the Great Seal, 39. Accession of Queen 
Anne : Holt reappointed Chief Justice, 40. A Majority of Whigs in the 
House of Lords, and of Tories in the House of Commons, 40. Corrupt 
Decisions of the House of Commons in Election Cases, 40. The Ayles- 
bury Case, 41. Qu. whether an Action could be maintained by an Elector 
against a Returning Officer for refusing his Vote ? 41. The three Puisne 
Judges in the Negative, 41. Holt contra, 42. Judgment of the King's 
Bench reversed in the House of Lords, 44. Absurd Resolutions of the 
House of Commons, 43. Counter-Resolutions of the House of Lords, 44. 
Writs of the Habeas Corpus by the Aylesbury men, 46. Holt's Opinion 
for discharging them, 46. He is over-ruled by all the other Judges, 49. 
Qu. whether Writ of Error lies on a Judgment on a Return to a Writ of 
Habeas Corpus 1- 49. Commitments of Counsel by the Commons, 49. 
Fabulous Story of Chief Justice Holt threatening to commit the Speaker 
of the House of Commons, 50. The Abuse of Privilege by the House of 
Commons remedied by Public Opinion on a General Election, 51. Holt 
again refuses the Great Seal, 5 1, 

CHAPTER XXV. 

CONCLUSION OF THE LIFE OF LORD CHIEF JUSTICE HOLT. 

Remainder of Holt's Judicial Career, 53. His Death, 53. His Funeral, 
53. His Monument, 55. Holt's Want of Literature and Science, 55. 
He put an End to Trials for Witchcraft, 56. He exposes hypocritical 
Pretenders to extraordinary Virtue, 58. His Detention of a False 
Propnet, 59. His Practice of interrogating Prisoners on Trial, 60. His 
supposed Opinion as to the Illegality of employing the Military to put 
down Civil Disturbances. 60. His Trial at Bar with the Crown, Trin. 6* 
Holt «5 an Author, 62. He was married to a Shrew, 63. Conclusion, 64. 



CONTENTS. ix 



CHAPTER XXVI. 

CHIEF JUSTICES FROM LORD HOLT TILL THE APPOINTMENT OF 
SIR DUDLEY RYDER. 

Sir Thomas Parker, afterwards Earl of Macclesfield, Chief Justice, 65. 
His Life already written, 66. Vacancy in the Office of Chief Justice of 
the King's Bench on his Promotion to be Chancellor, 66. Sir John 
Pratt, Chief Justice, 67. His Origin and Progress at the Bar, 67. He 
is made a Puisne Judge, 68. Chief Justice of the King's Bench, 68. His 
iSlost celebrated Judgment, 68. His Doctrine of Suspension overturned, 69. 
Chief Justice Pratt's Conduct in Dr. Bentley's Case, 70. He tries Layer 
for High Treasure, 72. His Opinion respecting the Power of the King 
in the Marriage and Education of the Royal Family, 74. His Death, 75. 
Lord Raymond, 75. Son of Sir Thomas Raymond, 75. He is called 
to the Bar, 77. His Eminence as a Reporter, 77. Witchcraft put an 
end to by the Prosecution of an Impostor, 77. Prosecution of Beau 
Fielding for Bigamy, 78. Raymond is Counsel for Lindsay the Jacobite, 
78. Raymond made Solicitor General by the Tories, 79, Raymond in 
Opposition, 79. His Speech against the Septennial Bill, 79. He joins 
the Whigs and is made Attorney General, 81. His Speech for the Crown 
in Prosecuting Layer, 81. He sinks into a Puisne Judge, 82. He is made 
Chief Justice of the King's Bench, 87 He is raised to the Peerage, 84. 
His Doctrine that the Publisher of an ibscene Libel may be prosecuted 
for a Misdemeanor, 85. He settles the J-lw respecting Murder and Man- 
slaughter, 86. Major Oneby's Case, 8& Liability of Jailer for Murder 
by Neglect, 91. Lord Raymond on th^ Law of Libel, 95. Lord Ray- 
mond's Nisi Prius Decisions, 97. Lor I Raymond's Abstinence from 
Politics, 97. His Opposition to the Bill fir conducting Law Proceedings 
in English, 97. His Death, 98. His Monwnent, 98. His Epitaph, 99. 
Panegyric upon him, 100. Lord Hardwicke Chief Justice of the 
King's Bench, 100. Difficulty in filling up the Office on his Promotion 
to be Chancellor, 101. SIR WILLIAM Lee Chief Justice of the King's 
Bench, loi. His Birth, 102. Prophecy as to the Effect of Plodding and 
Perseverance, 102. His Passion for Special Pleading, 103. His Victory 
in a great Settlement Case, 104. He is Counsel in Appeal of Murder, 
104. His Dislike of the House of Commons, 105. He is made a Fuisne 
Judge, 105. His Intimacy with Lord Hardwicke, 106. He is made 
Chief Justice of England, 106. His increasing Popularity, 107. His 
Judgment in favor of the " Rights of Women," 107. Other important 
Points decided by him, 108. Trial of the Rebels at St. Margaret'* >{ill, 
log. Colonel Townley's Case, 109. An Execution for High Trcr- in, 
III. M'Growther's Case, in. The Kinlochs' Case, 112. Sir J hn 
Wedderbum's Case, 114. Signal Defeat of Chief Justice Lee in t T ia) 



X CONTENTS. 

for Libel, 115. Chief Justice Lee Chancellor of the Exchequer, 117. 
Death of Chief Justice Lee, 117. His Diary and Almanacs, 117. Chief 
Justice Lee's Greatness in his own Time, 119. His Eloge by Sir James 
Burrow, 119. Chief Justice Lee's MSS., 120. 

CH A PTE R XX Vr I. 

LIFE OF CHIEF JUSTICE RYDER. 

Sir Dudley Ryder, izi. His Origin, 121. His Education, 122. He is 
called to the Bar, 123. He is made Solicitor General, 123. Description 
of Dublin and the Irish Bar in the beginning of the l8th Century, 124. 
Irish Judges and Juries, 127. Sir Dudley Ryder is made Attorney 
General, 128. His Speech for the Bill to disfranchise the City of 
Edinburgh, 129. His Speech in support of a Motion in the House of 
Commons for the summary Punishment of a Libeler, 130. His Speech in 
Favor of Impressment, 131. His Speech for attainting the Sons 
of the Pretender, 132. His Speech to prove the Expediency of 
allowing the Insurance of Enemies' Ships, 136. His Speech on the 
Regency Bill, 137, His Speech in Support of Lord Hardwicke's Marriage 
Bill, 138. His Prosecution of Colonel Townley for High Treason, 139 
His Speech on the Impeachment of Lord Lovat, 140. Signal Defeat of 
Mr. Attorney General and of the House of Commons, 143. Irish Porter's 
Song on " Sir Doodley," 145. Ryder, Lord Chief Justice, 145. He is 
about to be raised to the Peerage, 146. His Sudden Death, 147. Letters 
of Archbishop Ryder, 147. Expectation that Sir Dudley Ryder's Peer- 
age would be conferred on his Son, 148. Letter on this subject from the 
Honorable Charles Yorke, 148. Sir Dudley Ryder's amiable Character 
in Domestic Life, 149. Letters from him to Lady Ryder, 150. View of 
Westminster Hall, 150. The Chancellor at Drury Lane, 151. Anni- 
versary of Sir Dudley Ryder's Wedding-Day, 151. Fashionable Gossip 
152. Perils of a married Lawyer when living en garcon, 153. IIow a 
Lawyer may account for a Headache got by taking too much Wine, 153. 
Departure of the Family Coach for Bath to bring back Lady Ryder, 154. 
Sir Dudley's Joy at her Approach, 155. His Descendants, 155 

CHAPTER XXVIII. 

LIFE OF CHIEF JUSTICE WILLES. 

Two Chief Justices of the Common Pleas, 156. Origin of the Willes, 156. 
Sir John's early Career, 157. .He enters Parliament, and is made a Welsh 
Judge, 157. Subsequent Disappointments, 158. He becomes Attorney 
General, 158. His Speech against the Repeal of the Septennial Act, 
159. He is made Chief Justice of the Common Pleas, 160. His Dis- 



CONTENTS. xi 

appointment on the Death of Lord Justice Chancellor Talbot, i6l. His 
Intrigues with Lord Carteret, i6i. He is made First Lord Commissioner 
of the Great Seal, 162. He loses the Chancellorship by his own Mis. 
management, 163. Scene between Sir John Willes and Sir Robert 
Henley, 165. Sir John Willes broken-hearted, 165. Death of Sir John 
Willes, 166. His Judicial Decisions, l65. His Conduct on the Trial 
of Elizabeth Canning, 167. His Private Life, 16S. His Descendants, i63. 

CHAPTER XXIX. 

LIFE OF CHIEF JUSTICE WILMOT. 

Singular Characteristic of Lord Chief Justice Wilmot, 170. His Birth and 
Education, 170. Johnson and Garrick his Schoolfellows, 171. He is 
called to the Bar, 172. His Dread of being known or employed, 172. 
He becomes *' Devil" to the Attorney General, 173. He refuses a Silk 
Gown, the Appointment of King's Sergeant, and a Seat in Parliament, 
173. He is Counsel for the Defendant in a Crim. Con. Cause, 173. He 
retires into the Country as a provincial Counsel, 174. He is appointed a 
Puisne Judge of the King's Bench, 175. He is a Commissioner of the 
Great Seal, 177. His first refusal to be Chancellor, 177. His Escape at 
the Worcester Assizes, 17S. Offer made to him to become Chief Justice 
of the Common Pleas, 179. Letter from his Brother to persuade him to 
accept, 179. How he became a Chief Justice by Duress, 180. Letter of 
Congratulation from Mr. Justice Yates, iSo. From Judge Blackstone, 
181. He again refuses the Great Seal, 182. He resigns Justiceship, 183. 
Wilmot in Retirement, 183. His Death, 184. His Judicial Character, 
184. Actionable to state in Writing that a Person has the Itch, 184. 
Meaning, in a Policy of "usurped Power,'' 185. Qu. whether an Action 
lies by a Lady against a Gentleman on a Covenant to marry no one but 
her, 187. Power of the Solicitor General when the Offie of Attorney 
General is vacanl:, 188. Power of the Superior Courts to punish Contempts, 
i8g. Satire on Chief Justice Wilmot by Horace Walpole, 190. Character 
of Chief Justice Wilmot by his Son, 191. Censure on his Want o( 
Ambition, 193. 

CHAPTER XXX. 

Life of lord mansfield from his birth till he was 
called to the bar. 

Qu. how far Lord Mansfield's Career a fit Subject for Biography ? 194, 
Sources of Interest to the Author of this Memoir in composing it, 195 
Lord Mansfield's illustrious Descent, 196. Founder of the Stormont- 
Murrays, 196. David, 1st Viscount Stormont, 197. 5th Viscount Stormont, 



xij CCA TENTS. 

198. Birth of William Murray, afterwards Earl of Mansfield, 199. 
Refutation of the oft-told Tale that he was removed to England in his 
Infancy, 199. Words which he could never learn to pronounce like ar> 
Englishman, 200. Fable of his having been educated at Lichfield, 200. 
Willie Murray at Perth School, aoo. Items in Family Accounts for Books, 
&c., for him while he was a Schoolboy, 202. Deliberations respecting his 
further Education and his Profession, 203. His Brother James created by 
the Pretender Earl of Dunbar, 204. He advises that Willie should be 
sent to Westminster, 204. Willie to ride thither on a Pony, 205. He 
bids Adieu to his Native Country, 206. His Journey, 206. His Arrival 
in London, 207. Received and taken care of by a Scotch Apothecary, 
207. Items of Disbursements for him, 207. William Murray at West- 
minster, 208. Letter from the kind Apothecary to his Mother respecting 
him, 208. Anecdote of him while at Westminster, 210. He is elected a 
Scholar of Christ Church, and goes to Oxford, 211. His Destination 
changed from the Church to the Bar, 212. Assistance afforded him by 
the first Lord Foley, 212. While at Oxford he is entered of Lincoln's 
Inn, 212. His Studies at Oxford, 213. He devotes himself to the Arts of 
Oratory, 2^4. His Latin Essay criticising Demosthenes, 214. He gains 
the Latin Prize Poem on the Death of George I., 217. Origin of the 
Rivalry between him and the elder Pitt, 218. Murray at Lincoln's Inn, 
2lg. He attends a Debating Society, 221. He " drinks Champagne 
with the Wits," 222. His Intimacy with Pope, 222. His Excursion to 
France and Italy, 224. He is called to the Bar, 224. His Accomplishments 
as an Advocate, 225. 

CHAPTER XXX L 

CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE WAS 

MADE SOLICITOR GENERAL AND ENTERED THE 

HOUSE OF COMMONS. 

At first without Business, 226. His Attachment to his Profession, 226. He 
takes Chambers in King's Bench Walk, where he is visited by Pope, 227. 
His Letters " on the Study of Ancient and Modern History," 227. He 
prospers at the Bar of the House of Lords, 22g. He is Counsel against 
the Bill for Disfranchising the City of Edinburgh for the Murder of 
Captain Porteus, 231. He is crossed in Love, 233. Comforted by Pope, 
233. Cured by Business, 234. He is placed at the Head of the Bar by 
his Speech in a Crim. Con. Cause, 234. No Truth in the vulgar Story of 
his being suddenly required to speak on his Leader being taken ill, 235. 
Sarah, Duchess of Marlborough, his Client, 237. He appears at the Bar 
of the House of Commons on the Petition for a War with Spain, 237 His 
Marriage. 23B. After the Fall of Sir Robert Walpole he attaches ' him- 
self to the Pelhams, 240. He is made Solicitor General, 240. His Private 



CONTENTS. xiii 

Life, 241. His friendly Letter to Booth tlie Conveyancer, 242, Letters 
from him to Lord Milton, the Scotch Judge, 243. Regret of Pope that 
Murray had abandoned the Muses for Law and Politics, 245. Verses 
written by Pope in Murray's Chambers, 246. Their last Meeting, 246. 

CHAPTER XXXII. 

CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE WAS 
MADE ATTORNEY GENERAL, 

Murray's Brilliant Success in the House of Commons, 248. Pitt his Rival 
248. Murray's Speech on the Employment of Hanoverian Troops, 249 
Murray the Prop of, the Administration in the House of Commons, 251 
Rebellion of 1745, 253. Suspension of the Habeas Corpus Act, 253 
Murray prosecutes the rebel Lords, 254. Trial of Lord Balmerino, 255 
Trial of Lord Lovat, 256. Lord Lovat's Compliment to Mr. Murray, 259 
Libels upon him indiscreetly answered, 260. Murray an ultra Free Trader, 
261. His Speech in Defense of the Treaty of Aix-la-Chapelle, 262. In- 
terval of Quiet to Murray in the House of Commons while Pitt was in 
Office, 263. Death of Frederick, Prince of Wales, 264. The Regency 
Bill, 264. Charge against Murray that he drank the Health of the Pre- 
tender, 265. Hearing of the Charge before the Privy Council, 268. 
Murray's Speech in his own Defenr.e, 269. He is acquitted, but suspected, 
271. Pitt's Attack upon him as a Jacobite, 271. Murray's celebrated 
Vindication of our Naval Rights, 272. His Private Life, 273. His En- 
joyment of Lassitude, 274. His Patronage of Blackstone, 274 Death of 
Mr. Pelham, 275. Murray declines the situation of Prime Minister, 276. 
Duke of Newcastle Prime Minister, 276. Murray, Attorney General, 277. 

CHAPTER XXXIII. 

CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE WAS 
MADE LORD CHIEF JUSTICE OF THE KING'S BENCH. 

Murray refuses the Rolls, 279. Passages of Arms between Murray and 
Pitt, 279. Letter to Lord Milton announcing his Appointment as Lord 
Justice Clerk, 281. Disagreeable and apparently desperate Position in 
which Murray found himself, 282. Sudden Death of Sir Dudley Ryder, 
282. Murray claims the office of Chief Justice of the King's Bench, 2S3. 
Vain Efforts of the Duke of Newcastle to induce him to remain in thu 
House of Commons, 283. Murray Chief Justice of the King's Bench, 283. 
The Appointment generally approved of, 28f.. His Farewell address on 
taking leave of Lincoln's Inn, 287. 



XIV CONTENTS. 



CHAPTER XXXIV. 

VIEW OF LORD MANSFIELD'S JUDICIAL CHARACTER AND 
OF HIS DECISIONS. 

He takes his Seat in tlie Court of King's Bench, 2go. Necessity for a Re- 
view of Lord Mansfield's Judgments, 2go. Was he a great Judge ' 2g:. 
His unparalleled Ascendency in Westminster Hall, 2g2. His passionate 
Love of the Duties of a Judge, 2g4. Reforms of Procedure introduced 
by him, 2g5. Improvements, founded on Principle, which he contemplated, 
2gg. Panegyric upon Lord Mansfield by BuUer, 301. His Treatment of 
the Law of Insurance, 302. Bills of Exchange, 305. Right to Freight, 

306. Employment of " Puffers " at an Auction, 306. His Colonial Law, 

307. Campbell v. Hall, 30S. Legality of Ransom Bills, 311. Remedy 
against the Governor of a Foreign Possession, 312. Fabrigas v. Mostyn, 
312. Lord Mansfield's Respect for the Jurisdiction of other Courts, 314. 
Right to Wreck, 315. Somersett's Case: a Slave becomes free in Eng- 
land, 316. Legality of pressing Seamen, 318. Wagers, 318. On Ihe 
Result of an Appeal to the House of Lords, 318. Two Heirs "running 
their Fathers," 3ig. On the Sex of the Chevalier D'Eon, 320. Conspiracy 
to corrupt a young Female indictable, 323. Lord Grosvenor k. Duke of 
Cumberland, 324. Literary Property, 325. Lord Mansfield's Decisions 
on the Law of Evidence, 329. Famous Case of Perrin v. Blake, 329. 
Controversy respecting the contradictory Opinions given by Lord Mans- 
field, 333. Charge of Junius against Lord Mansfield for trying to subvert 
the Common Law, 337. Censure of him by Lord Redesdale, 338. VIut 
dication of Lord Mansfield, 33S. His supposed Preference for the Civil 
Law, 338. His supposed Neglect of established Forms and former 
Decisions, 33g. His supposed Confounding of Legal and Equitable 
Jurisdiction, 340. His real Love for Common-Law Modes of Proceeding, 
342. Lord Mansfield as a Criminal Judge, 343. Lord Maasfield's Merits 
in deciding Scotch Appeals in the House of Lords, 343. The Douglas 
Cause ; Explanation of Lord Mansfield's bad Speech upon it, 345. 

CHAPTER XXXV. 

CONTINUATION OF THE LIFE OF LORD MANSFIELD FROM HIS 

BEING MADE CHIEF JUSTICE TILL THE ACCESSION 

OF GEORGE III. 

Offer to Lord Mansfield of the Great Seal, 346. He takes his seat in the 
House of Peers, 347. His Maiden Speech there, 347, Lord Mansfield 
Chancellor of the Exchequer, 348. Intrigues for the Formation of a new 
Ministry 349. Lord Chatham's first Government, 350. Lord Manffield 



CCA TENTS. X? 

again refuses the Great Seal, 350. He is a Member of the Cabinet, 351. 
He throws out the Habeas Corpus Amendment Bill, 353. Trial of De 
Hensey for High Treason, 354. End of the reign of George II., 355. 

CHAPTER XXXVI. 

CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL TUB 
DISAPPEARANCE OF JUNIUS. 

Accession of George III., 357. Lord Mansfield reappointed Chief Justice, 
357. Liaison between Lord Mansfield and Lord Bute, 357. Resignation 
of Lord Chatham, 358. Prudent Advice given by Lord Mansfield to 
Lord Bute, 359. Rumor that Lord Mansfield wished to be Chancellor, 
359. Lord Bute's Differences with Lord Mansfield, and subsequent Im- 
prudence, 360. Lord Bute resigns, 361. Lord Mansfield continues a 
Member of the Cabinet, 361. General Warrants, 362. Wilkes' Outlawry, 
363. Lord Mansfield's Judgment reversing the Outlawry, 364. Lord 
Mansfield retires from the Cabinet, 368. Disputes with America, 368. 
Lord Mansfield again refuses the Great Seal, 370. Question respecting 
the Middlesex Election, 371. Lord Chatham's Attack on Lord Mansfield, 
372. Lord Mansfield quails under the Infliction, 375 Lord Chatham's 
Blunder about " an Act for Damages against the House of Commons," 
376. Lord Mansfield's Speech against Lord Chatham's Bill to reverse the 
Decision of the House of Commons in the Middlesex Election Case, 377. 
Junius' Letter to the King, 378. Rex w. Almon, 379. Rex v. Woodfall, 
380. Rex V. Miller, 3S2. Junius' first Letter to Lord Mansfield, 3S4. 
Attacks upon Lord Mansfield in Parliament, 387. His successful Defense 
of himself, 387. Lord Mansfield's subsequent Indiscretion and Cowardice 
in ^is Contest with Lord Camden, 390. Lord Mansfield gives the Great 
Seal to Lord Bathurst, 393. New Attacks on Lord Mansfield by Junius, 
394. Junius at last silenced, 395. 

CHAPTER XXXVII. 

OONTINUATION OF THE LIFE OF LORD MANSFIELD TILL THE 
DEATH OF LORD CHATHAM. 

Lord Mansfield visits Paris, 397. Progress of the Disputes with America, 

398. Lord Mansfield's Speech for a vigorous Prosecution of the War, 

399. Specimen of the Manners of the House of Lords in the reign of 
George III., 400. Supposed Consequences of the Independence of 
America, 403. Trial of the Duchess of Kingston for Bigamy, 403. Lord 
Mansfield created an Earl, 405. Trial of John Home Tooke for a Libel, 
406. Disasters in America, 408. Death of Lord Chatham, 409. Lord 
Mansfield's Behavior on this Occasion, 410. 



xvl CONTENTS. 

CHAPTER XXXVIII. 

CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL THK 
CONCLUSION OF THE TRIAL OF LORD GEORGE GORDON. 

Decline of Lord Mansfield's Political Importance after the Death of Lord 
Chatham, 413. He recommends a Coalition of Parties, 414. Lord George 
Gordon's Riots, 415. Lord Mansfield's Love of religious Toleration, 
415. Remedy to Dissenting Ministers, 415. Evidence of a Quaker ad- 
mitted in an Action for Bribery, 416. A Dissenter not liable to a Penalty 
for not accepting an Office requiring Conformity to the Established Church, 
417. Acquittal of a Roman Catholic Priest charged with the Crime of 
saying Mass, 419. Bill to mitigate the Penal Laws against Catholics, 420. 
Anti-Popery Riots and Petitions, 421. Violent Speech of Lord George 
Goi-don in the House of Commons, 421. Monster Petition from the Pro- 
testant Association to the House of Commons, 422. Meeting in St. 
George's Fields, 422. Assault on the Peers, 423. Great Courage dis- 
played by Lord Mansfield, 425. He is deserted by all his Brother Peers, 
426. He gets home in Safety, 426. His House is burnt down by the 
Mob, 428. Stanzas by Cowper on the Burning of I,ord Mansfield's 
Library, 430. The Riots are at last quelled, 431. Lord Mansfield's 
Speech vindicating the Employment of the Military for that purpose, 432. 
He presides at the Trial of Lord George Gordon, 436. Erskine's Allusion 
to the Burning of Lord Mansfield's House, 437. Lord Mansfield's Ex- 

- position of the Law of High Treason, 437. Lord George Gordon is 
acquitted, 438, 

CHAPTER XXXI X. 

CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE 
RESIGNED THE OFFICE OF CHIEF JUSTICE. 

Lord Mansfield takes no part in Politics during the Administration of Lord 
Rockingham and Lord Shelburne, 439. He joins the- Coalition, 440. 
Fox's India Bill in the House of Lords, 441. Mr. Pitt, Prime Minister, 
443. Lord Mansfield's last Speech in Parliament, 444, Close of Lord 
Mansfield's Political Career, 446. Dean of St. Asaph's Case : Rights of 
Juries in Cases of Libel, 446. Progress of Opinion respecting the Law of 
Libel, 451. Action by Mr. Pitt for a Libel accusing him of gambling in 
the Funds, 452. Lord Mansfield's Visit to Tunbridge Wells, 454. Inter- 
view between Lord Mansfield and Lord George Sackville, 454. Lord 
Mansfield, unable to sit in Court, retains his Office, 456. He resigns the 
office of Chief Justice, 458. Address to him by the King's Bench Bar, 
458. His answer, 45 



LIVES 



CHIEF JUSTICES OF ENGLAND. 



CHAPTER XXIII. 

LIFE OF LORD CHIEF JUSTICE HOLT, FROM HIS BIRTH 

TILL THE COMMENCEMENT OF HIS CONTESTS 

WITH THE TWO HOUSES OF PARLIAMENT. 

THE unprincipled, ignorant, and incompetent Chief 
Justices of the King's Bench, who have been excit- 
ing alternately the indignation and the disgust of 
the reader, were succeeded by a man of unsullied honor, 
of profound learning, and of the most enlightened under- 
standing, who held the office for twenty-two years, — 
during the whole of which long period — often in circum- 
stances of difficulty and embarrassment — he gave an ex- 
ample of every excellence which can be found in a per- 
fect magistrate. To the happy choice of SiR JOHN HOLT 
as president in the principal common law court, and to 
his eminent judicial services, we may in no small degree 
ascribe the stability of the constitutional system intro- 
duced when hereditary right was disregarded, and the 
dynasty was changed. During the reigns of William and 
of Anne, factions were several times almost equally bal- 
anced, and many of the enormities of the banished race 
were forgotten ; but when men saw the impartiality and 
mildness with which, in the discharge of his duty, he al- 
ternately defied the power of either House of Parliament, 
they dreaded a counter-revolution, by which he would 
have been removed to make place for a Jeffrey, a Scroggs, 
or a Wright. 

Of all the Judges in our annals. Holt has gained the 
highest reputation, merely by the exercise of judicial 
III — I 



a JOHN HOLT. [i64*' 

functions. He was not a statesman like Clarendon, he 
was not a philosopher like Bacon, he was not an orator 
like Mansfield ; yet he fills nearly as great a space in the 
eye of posterity ; and some enthusiastic lovers of juris- 
prudence regard him with higher veneration than any 
English Judge who preceded or has followed him. _ 

It would have been most interesting and instructive to 
trace the formation of such a character; but, unfortunate- 
ly, little that is authentic is known of Holt till he ap- 
peared in public life ; and for his early career we are ob- 
liged to resort to vague and improbable traditions. 

He was of a respectable gentleman's family, seated in 
the county of Oxford.' His father tried, rather unsuc- 
cessfully, to eke out the income arising from a small pat- 
rimonial estate, by following the profession of the law, 
and rose to be a bencher of Gray's Inn. In 1677 he be- 
came a Sergeant, but was known by mixing in factious 
intrigues rather than by pleading causes in Westminster 
Hall. Of the party who were first called " Tories" he 
was one of the founders. Taking the Court side with 
much zeal, he was rewarded with knighthood, and be- 
came " Sir Thomas." Of course he was an " abhorrer," 
inveighing against the " Petitioners" as little better than 
traitors — in consequence of which he was taken into cus- 
tody by order of the House of Commons. His celebrated 
son had strongly taken the other side in politics — but 
was no doubt shocked at this stretch of authority, and 
rnay then have imbibed the dislike which he afterwards 
evinced of the abuse of parliamentary privilege. The 
old gentleman soon after died, and if he had been child- 
less his name never more would have been heard of. 

But on the 30th of December, 1642, there had been 
born to him at Thame, in Oxfordshire, a son, the subject 

' I have taken the following account of Ch. J. Holt's family, and the 
dstes of the different events in his early career, from a Life of him published - 
in tlK year 1763, with the motto from his epitaph — 
" Libertatis, ac Legum Anglicarura 

Assertor, Yindex, Custos, 

Vigilis, Acer, et Intrepidus." 
This, as a biography, is exceedingly meagre, but it seems very accurate, and 
it cites authorities, most of which I have investigated, but which I do not 
think it worth while to parade. See likewise an able Life of Holt in Wels- 
by's " Eminent English Judges," which has been of considerable service to 
me in preparing this memoir. 



1642.J JOHN HOLT. 3 

of this memoir, whom he lived to see rising into great 
eminence, and of whom he was justly proud although he 
deplored his political degeneracy when he found him to 
be a Whig. 

All that we certainly know of young John's boyish 
education is that he was seven or eight years in the Free 
School of the town of Abington, of which his father was 
Recorder. It is said, that during the whole of this time 
he was remarkable for being idle and mischievous — a 
statement which I entirely disbelieve. " The boy is the 
father of the man," and though there may be a superven- 
ing habit of dissipation — which may be conquered — the 
devoted application to business, the unwearied persever- 
ance, and the uniform self-control which characterized 
Sir John Holt, could only have been the result of a sub- 
mission to strict discipline in early youth. 

In his sixteenth year he was transferred to the Uni- 
versity of Oxford, and entered a fellow commoner of 
Oriel College. Here he was guilty of great irregulari- 
ties, although they have been probably much exagger- 
ated, and might arise from his having been previously 
kept under excessive restraint. His biographers repre- 
sent him as copying Henry V. when the associate of 
Falstaff, and not only indulging in all sorts of licentious 
gratifications, but actually being in the habit of taking 
purses on the highway. They even relate that many 
years after, when he was going the circuit as Chief Jus- 
tice, he recognized a man, convicted capitally before 
him, as one of his own accomplices in a robbery, and 
that, having visited him in jail and inquired after the 
rest of the gang, he received this answer, " Ah ! my 
Lord, they are all hanged but myself and your Lord- 
ship ?" ' 

' Hanging was not formerly considered so very disgraceful and melan- 
choly an occurrence as it is now. When I first came to London I fre- 
quented the famous Cider Cellar in Maiden-Lant, where I met Professor 
Person, Matthew Raine, the Master of the Charter-House, and other men 
of celebrity. Among these was George Nichol, the King's bookseller, who, 
in answer to some reflections on the society which sometimes came there, 
answered, with an air of conscious dignity, " I have known the Cider Cellar 
these forty years, and during that time only two men have been hung out of 
it." At this time the Cellar was repaired, and Porson suggested for it the 
motto which it still bears — 

"HONOS ERIT HUIC QUOQUE POMO." 



4 yOHN HOLT [1642. 

Another story of his juvenile extravagance is well 
told by my friend Mr. Welsby : — 

" Hiiving prolonged one of his unlicensed rambles 
round the country, in company with some associates as 
reckless as himself, until their purses were all utterly ex- 
hausted, it was determined after divers consultations 
how to proceed : that they should part company, and 
try to make their way singly, each by the exercise of his 
individual wits. Holt, pursuing his separate route, came 
to the little inn of a straggling village, and, putting the 
best face upon the matter, commended his horse to the 
attentions of the ostler, and boldly bespoke the best 
supper and bed the house afforded. Strolling into the 
kitchen, he observed there the daughter of the landlady, 
a girl of about thirteen years of age, shivering with a fit 
of the ague ; and on inquiring of her mother how long 
she had been ill, he was told nearly a year, and this in 
spite of all the assistance that could be had for her from 
physicians, at an expense by which the poor widow de- 
clared she had been half ruined. Shaking his head with 
much gravity at the mention of the doctors, he bade her 
be under no further concern, for she might assure herself 
her daughter should never have another fit: then scrawl- 
ing a few Greek characters upon a scrap of parchment, 
and rolling it carefully up, he directed that it should be 
bound upon the girl's wrist, and remain there till she was 
well. By good luck, or possibly from the effect of im- 
agination, the ague returned no more, at least during a 
week for which Holt remained their guest. At the end 
of that time, having demanded his bill with as much 
confidence as if his pockets were lined with jacobuses, 
the delighted hostess, instead of asking for payment, be- 
wailed her inability to pay him as she ought for the won- 
derful cure he had achieved, and her ill-fortune in not 
having lighted on him ten months sooner, which would 
have saved her an outlay of some forty pounds. Her 
guest condescended after much entreaty, to set off against 
his week's entertainment the valuable service he had ren- 
dered, and wended merrily on his way. The sequel of 
the' story goes on to relate, that when presiding, some 
forty years afterwards, at the assizes of the same county, 
a wretched, decrepit old woman was indicted before him 



1642.] yOHN HOLT. S 

for witchcraft, and charged with being in possession of a 
spell which gave her power to spread diseases among the 
cattle, or cure those that were diseased. The Chief Jus- 
tice desired that this formidable implement of sorcery 
might be handed up to him ; and there, enveloped in 
many folds of dirty linen, he found the identical piece 
of parchment with which he himself played the wizard 
so many years before. The mystery was forthwith ex- 
pounded to the jury; it agreed with the story pre- 
viously told by the prisoner ; the poor creature was in- 
stantly acquitted, and her guest's long-standing debt 
amply discharged." ' 

He had been early destined to the profession of the 
law, having been entered on the books of Gray's Inn 
when he was only ten years old. His father was then 
treasurer of that society, and entitled to admit a son 
without a fee. Before he had completed his iirst year's 
residence at Oxford, such were his excesses, and such 
were the complaints which they called forth, that Sir 
Thomas thought the only chance of saving him from 
utter ruin was a change of scene, of company, and of 
pursuits. Accordingly he was brought to London ; he 
was put under the care of a sober attorney, and he was 
required to keep his terms with a view to his being called 
to the bar. The experiment had the most brilliant suc- 
cess. His reformation was at once complete ; and, with- 
out taking any vow, like Sir Matthew Hale, against stage 
plays and drinking, or renouncing society to avoid temp- 
tation, he applied ardently to the study of the law, and 
his moral conduct was altogether irreproachable. 

Unfortunately we have no particular account of the 
manner in which he rendered himself so consummate a 
jurist. " Moots" and " Readings" at the Inns of Courts 
were going out of fashion ; and the ponderous common- 
place book, by which every student was expected to 
make out for himself a Corpus Juris Anglicani, was, 
since the publication of ROLLE and other compilations, 
thought rather a waste of labor. I suspect that, after 
acquiring a knowledge of practice from his attorney- 
tutor, young Holt improved himself chiefly by the dili- 
gent perusal of well-selected law-books, and by a fre- 

' Lives of Eminent English Judges, p. 91. 



6 JOHN HOLT. [1642. 

quent attendance in the course at Westminster when 
important cases were to be argued. By an intuitive 
faculty not to be found in your mere blacfe-letteji lawyer, 
he could distinguish genuine law, applicable to real busi- 
ness, from antiquated rubbish, of no service but to show 
a familiarity with the Year-Books. He made himself 
master of all that is useful in our municipal code, and, 
from his reasoning in Coggs v. Barnard, and in other 
cases, it is evident that he must have imbued his mind 
with the principles of the Roman civil law. If he once 
took delight in classical studies, he now renounced 
them ; and he never wandered into philosophy, or even 
cared much about the polite literature of his own coun- 
try. But he mixed occasionally in general society, and 
picked up much from conversation ; so that he was well 
acquainted with the actual business of life, and had a 
keen insight into character. His mother-wit was equal 
to his clergy. 

Soon after he came of age he was called to the bar ; a 
wonderful precocity in those days, when a training of 
seven or eight years, after taking a degree at a uni- 
versity, was generally considered necessary before put- 
ting on the long robe. His juvenile appearance seems 
to have been adverse to his success, as for some years he 
was still dependent on his father's bounty for his sub- 
sistence. He sought for practice in the Court of Kino-'s 
Bench, and rode the Oxford Circuit, but long remained 
without clients. Being advised to try his luck in the 
Court of Chancery, he expressed an unbecoming con- 
tempt for our equitable system, v/hich certainly was then 
in a very crude state, and he professed a determined 
resolution to make his fortune by the common law. 

He still read diligently, and took notes of all :he re- 
markable cases which he heard argued. When he was 
at last found out, business poured in upon him very 
rapidly. He was noted for doing it not only with learn- 
ing always sufficient, but with remarkable good sense 
and handiness ; so that he won verdicts in doubtful 
cases, and was noted for having " the ear of the court." 
Yet he would not stoop, for victory, to any unbecoming 
art, and always maintained a character of straightfor- 
wardness and independence. His name frequently ap- 



ifi79-] yOHN HOLT. 7 

pears as counsel in routine cases in the King's Bench 
Reports about the middle of the reign of Charles II., 
and he was soon to gain distinction in political prosecu- 
tions which interested the whole nation. 

He always showed in domestic life much reverence, as 
well as affection, for his father ; but on public affairs he 
thought for himself, and he decidedly preferred the 
" country party." He had regarded with horror the in- 
iquities of the infamous Cabal, and he associated him- 
self with those who were struggling for the principles of 
civil and religious liberty. He was tainted with the 
rage against Popery, from which no patriot was then 
free ; but, although a sincere member of the Church of 
England, he was for extending a liberal toleration to all 
orthodox Dissenters. With these principles, and his 
professional eminence, he was sure to be of service to 
his country in the struggles that were then going for- 
ward between the contending parties in parliament and 
in the courts of law. 

The first cause cdlebre in which he was engaged was 
the impeachment of the Earl of Danby. The King, 
dreading the disclosures which might be made in in- 
vestigating the charges against his prime minister, had 
granted him a pardon, to which with his own royal hand 
he had affixed the great seal ; but the Commons, allow- 
ing that it was within the power of the prerogative to 
remit the sentence after it had been pronounced, denied 
that a pardon could be pleaded in bar of an impeach- 
ment. The Lords received the plea, and assigned Mr. 
Holt as counsel for the defendant to argue its validity ; 
the understood rule then being (as had been settled in 
the case of the Earl of Strafford), that upon an impeach- 
ment the defendant might have the assistance of coun- 
sel on any question of law, although not to argue the 
merits of the accusation. The Commons were now so 
unreasonable as to pass a resolution "That no com- 
moner whatsoever shall presume to maintain the valid- 
ity of the pardon pleaded by the Earl of Danby, without 
the consent of this House first had ; and that the per- 
sons so doing shall be accounted betrayers of the 
liberties of the Commons of England.'" Holt remained 

' II St. Tr. 807. 



8 JOHN HOLT. [1680, 

undismayed, and would manfully have done his duty at 
the peril of being seized by the Sergeant-at-arms and 
lodged in " Little Ease." But the King put an end for 
the present to the controversy between the two Houses 
by an abrupt dissolution of that Parliament which had 
sat seventeen years, which on its meeting was ready to 
make him an absolute sovereign, but which now seemed 
disposed to wrest the scepter from his hand.' 

Holt was afterwards assigned by the Lords to be 
counsel for the Earl of Powis and Lord Bellasis, two of 
the five Popish peers capitally impeached on the charge 
of being concerned in the Popish Plot, which was con- 
verted into high treason, the murder of the King being 
one of its supposed objects." However, the unhappy. 
Lord Strafford was alone brought to trial, and his mur- 
der caused such a reaction in the public mind that the 
other intended victims were released when they seemed 
inevitably doomed to share his fate. 

By one of the professional accidents to which all men 
at the bar are liable, from not being at liberty to refuse 
a retainer. Holt was next associated with Sir George 
Jeffreys in prosecuting a bookseller for publishing a 
pamphlet alleged to be libelous and seditious, bedause it 
attempted to discredit the testimony of the witnesses 
against those who had died as authors of the Popish 
Plot. There might have been a design to influence the 
jury by presenting before them as counsel, in support of 
a tale which was becoming unpopular, one who was 
known to have opposed it when few had had courage to 
express a doubt of its most improbable fictions. 

Mr. Holt had merely, as junior, to open the plead- 
ings, and was followed by his leader, who delivered a 
panegyric on Lord Chief Justice Scroggs, and denounced 
all who did not believe in the Popish Plot as traitors, re- 
gretting that the present defendant was only indicted 
for a misdemeanor, so that his punishment could not be 
carried beyond fine, imprisonment, whipping, and pil- 
lory. This harangue caused such consternation that the 
defendant submitted to a verdict of GuiLTY, although, 
on the part of the prosecution, they seem not to have 

' 5 Pari. Hist.' 1074. » 7 St. Tr. 1242, 1260. 



i68o.J JOHN HOLT 9 

been prepared to prove that he had published the ob- 
noxious pamphlet.' 

In the next case in which we find Holt engaged, his 
duties as an advocate and his political propensities fully 
coincided : he was counsel for Lord Russell. But, rn 
those days, a barrister had little opportunity for a dis- 
play of talent in the defence of persons accused of high 
treason ; for his mouth was closed, and, indeed, his capa- 
city of advocate was not acknowledged by the Court, 
except when some question of law incidentally arose 
during the trial. During the impanneling of the jury, 
exception was made to one of them, on behalf of the 
prisoner, for not having a freehold ; and the question 
was raised " whether it was required, either by the com- 
mon law or statute, that, on trials for treason, jurymen 
should be freeholders?" This was very learnedly argued 
by Holt ; but all his authorities and reasonings were 
overruled." During the remainder of the trial he had to 
look on as a mere spectator, — while the illustrious pris- 
oner, assisted only by a heroic woman, in vain struggled 
against the chicanery of the counsel for the Crown, and 
the browbeating of corrupt Judges. Holt's own upright 
and merciful demeanor in the seat of justice may, in 
part, be ascribed to the horror which the closing scene 
of this sad tragedy was calculated to inspire. 

In civil cases, eager for victory, he seems not to have 
been very scrupulous as to the arguments he urged, but 
— according to the American phrase, now naturalized in 
Westminster Hall, — to have " gone the whole hog." 
Thus, in the case of the East India Company v. Sandys, 
in which the question was, whether the King's grant to 
the plaintiffs of an exclusive right to trade to all coun- 
tries east of the Cape of Good Hope gave them a right of 
action against all who infringed their monopoly, he bold- 
ly argued that, although such a grant touching the Chris- 
tian countries of Europe might be bad if not confirmed 
by Parliament, the King's subjects had no right to hold 
intercourse of any kind with Infidels without the express 
authority of the Crown ; citing Lord Coke's doctrine 

« Rex V. Smith, 7 St. Tr. 931. 

• The refusal of a challenge to the jurors for want of freehold was made 
one of the principal grounds for reversine; the attainder. 9 St. Tr. 696. 



lo JOHN HOLT. [1683. 

that " Infidels are perpetual enemies, and the Book of 
Judges, which shows " how the children of Israel were 
perverted from the true religion by converse with the 
heathen nations round about, from whom they took 
wives and concubines." ' On this occasion he laid him- 
self open to the severe sarcasm of his opponent. Sir 
George Treby, who observed, " I did a little wonder to 
hear merchandizing in the East Indies objected against 
as an unlawful trade, and did not expect so much divin- 
ity in the argument : I must take leave to say that this 
notion of Christians not to have commerce with infidels 
is a conceit absurd, monkish, fantastical, and fanatical." 
Jeffreys, however, was the judge, and he fully adopted 
the argument that the King's license alone can legalize 
a trading with infidels ; adding sentiments which will 
make true protectionists venerate his memory : "This 
island supported inhabitants in many ages without any 
foreign trade at all, having in it all things necessary for 
the life of man — Terra suis contenta bonis, non indiga 
mercis. And truly I think, if at this day East India com- 
modities were absolutely prohibited, though some few 
traders might be mulcted of enormous gains, it would be 
for the general benefit of the inhabitants of this realm." 
So Holt had the triumph, and, I fear, was not ashamed 
of it ; although, when he was himself on the bench, he 
would sooner have died than have pronounced such a 
judgment." His most creditable appearance at the bar 
was in the case of the Earl of Macclesfield m. Starkey^ in 
which the question arose, " whether an action for defa- 
mation c6uld be maintained against a grand juryman for 
joining in a presentment at the assizes which charged the 
plaintiff and other gentlemen of the county of Chester 
as promoters of schism, disaffection, and infidelity, be- 
cause they had signed an address to Whig members of 
Parliament, commending the principles of that party?" 
Holt was for the defendant, and, in a most masterly 
manner, entered into the distinction between publications 
that are criminatory and malicious, and the publications 
that are criminatory without being malicious ; showing 
that no persons are to be sued for acting in the discharge 

' 10 St. Tr. 519 ; Lives of the Chancellors, v. 585. 

« 10 St. Tr. 371. "Ibid. 135 1. 



1 686.] JOHN HOLT. i, 

of their duty with a view to the public good, although 
the character of individuals might thereby be prejudiced ; 
and laying down with wonderful force the grand prin- 
ciple on which the legislature in our time passed the act 
declaring that the two Houses of Parliament have the 
right to publish whatever they deem necessary for the 
information of the community without the danger of an 
action or indictment against their officers. He succeed 
ed ; less, probably, from the force of his argument, than 
from the fact that the defendant was a violent Tory, and 
that the presentment was highly agreeable to the Gov- 
ernment. 

Although ever consistent and zealous in his Whig 
principles, Holt never associated himself with Shaftes- 
bury, nor entered into the plots which exposed the lead- 
ers of the party to the penalties of treason ; and, when 
James H. came to the throne, so moderate did he ap- 
pear that an attempt was made to gain him over to the 
Court, and a hope was entertained that he might prove 
a useful tool in carrying on the scheme which had been 
deliberately concerted for the subversion of public lib- 
erty. 

By the famous Quo Warranto, the charters of Lon- 
don had been adjudged to be forfeited, and the appoint- 
ment of all the city officers was in the Crown. Sir 
Thomas Jenner had accordingly been made Recorder by 
royal mandate, without the intervention of the aldermen 
or the common council ; and when he was promoted to 
be a Baron of the Exchequer, the vacant Recordership 
was offered to Mr. Holt. Although not unaware of the 
motive by which the Government was actuated, he 
thought he was not at liberty to refuse a judicial office, 
and he accepted it, fully determined, in a resolute man- 
ner, to perform its duties. He actually seemed, for a 
short space, to be likely to become an associate of Jeff- 
reys, for, having taken the degree of the coif,' he was 
immediately promoted to the high dignity of King's Ser- 
geant, and had the honor Of knighthood conferred upon 
him. But he was soon called upon either to maintain 

' On this occacion he gave rings with the motto — " Deus, Rex, Lex," 
which is noticed by Bishop Kennet as honorably distinguished from that of 
the last f receding batch of sergeants, — " A Deo Rex, a Rege Lex," setting 
the King above the Law. 



i2 JOHN HOLT [leSfr, 

his integrity and to sacrifice office, or really to be de- 
giaded to the level of the corrupt Judges who were ready 
to act according to the orders they received from the 
ministers of the Crown. 

James II. hoped to subvert the religion of the country 
by the exercise of his dispensing power, and its liberties 
by keeping up a standing army in time of peace, with- 
out the authority of parliament. All his Judges in 
Westminster Hall, with the exception of Baron Street, 
had decided that, in spite of acts of parliament requir- 
ing the oath of supremacy and the declaration against 
transubstantiation, he might appoint a Roman Catholic 
to any office, civil, military, or ecclesiastical ; and all 
these perverters of the laws, except Chief Justice Her- 
bert and Justice Wythens, had given an opinion that an. 
old statute of Edward III. against desertion in time of 
war empowered the King to keep up, and to rule by 
martial law, an army raised by his own authority, at a 
time when he had no foreign enemy and there was pro- 
found tranquility at home. Both these questions inci- 
dentally arose before Holt, sitting as Recorder at the Old 
Bailey sessions ; and he firmly declared, that although 
the dispensing power claimed by the Crown had been 
applied, from ancient times, to statutes imposing pecu- 
niary penalties given to the King, it could not extend 
to a statute imposing a test to protect the religion of 
the nation ; and that although the King by his preroga- 
tive might enlist soldiers, even in time of peace, still, if 
there was no statute passed to punish mutiny, and to 
subject them to a particular discipline, they could not be 
punished for any military offense, and they were only 
amenable to the same laws as the rest of the King's 
subjects. The Recordership of London being, under 
the existing regime, held during the pleasure of the 
Crown, Holt was immediately removed from it; and was 
replaced by an obscure Sergeant-at-law, of the' name of 
Tate, who had the recommendation of being ready to 
hold that the King of England was as absolute as the 
Grand Signor. 

By^a refinement of malice he was allowed to continue 
King's Sergeant, for in the state proscecutions which were 
impending he was thus effectually prevented from acting 



*1688.] 



JOHN HOLT. 13 



as counsel for the accused, while it was unnecessary to 
employ him for the Crown. Accordingly, he was not 
trusted with a brief to assist in trying to convict the 
Seven Bishops ; and they, being deprived of his advo- 
cacy, which they would have been eager to secure, were 
obliged to employ several counsel who were suspected 
to be under the influence of the Government — and might 
have been betrayed, if Mr. Somers, till then unknown, 
had not been added to their number.' 

But Holt was summoned, in his capacity of King's 
Sergeant, to attend the Council assembled by the King, 
when it was too late, to investigate the circumstances of 
the birth of the Prince of Wales, and to expose the cal- 
umnious story that a supposititious child had been intro- 
duced in the Queen's bed-chamber in a warming-pan. 
He assisted in examining the witnesses who proved so 
satisfactorily her pregnancy and her delivery, and in 
drawing up the declaration by which an ineffectual at- 
tempt was made to disabuse the public mind. 

I do not find that Holt joined in the invitation to the 
Prince of Orange, or that he took any active part in the 
revolutionary movement till after the flight of King 
James — when the throne, by all good Whigs, was con- 
sidered vacant. He then declared that he was completely 
released from his allegiance to the abdicated monarch, 
and exerted himself to bring about a settlement which, 
disregarding hereditary right, should establish a consti- 
tutional monarchy, justly esteemed by him the best 
guarantee for true freedom. 

When the Peers first met and formed a provisional 
igovernment, as they could have no confidence in the 
legal advice of the Judges, Holt, with several other lib- 
eral lawyers, attended them as theira ssessors, and con- 
curred in the proceedings which terminated in the 
Prince of Orange summoning the Convention Parlia- 
ment." 

' The Diary of the second Lord Clarendon shows that Holt, as King's 
Sergeant, was obliged to refuse taking a brief for the plaintiff in a suit 
against the Queen Dowager Catherine of Braganza, although he was not 
employed for her. The noble diarist, not aware of professional etiquettes, 
seems to have been veiy angry ; and declares that the only honest lawyers 
ihe ever met with were two " thurrough Tories" like himself, Roger North 
iind Sir Charles Porter. 

' 5 Pari. Hist, ig, si, 24. 



14 JOHN HOLT. [i68^ 

He was not one of the members originally returned to 
the House of Commons on this occasion ; and when the 
session began, as King's Sergeants had been accustomed 
to have a summons to the House of Lords, he took his 
place on the woolsack, from which the Judges were ban- 
ished, and guided their Lordships in the forms to be ob- 
served in reconstructing the constitution." But it was 
thought that his presence in the Lower House might be 
more advantageous ; and Sergeant Maynard, who had 
been returned both for Plymouth and Beeralston, having 
elected to serve for the former borough, Sergeant Holt 
was chosen by the latter, — which was represented for a 
great many years by such a succession of patriotic law- 
yers, that we might almost be reconciled to close 
boroughs if the scandal caused by them could be forgot- 
ten. 

On taking his seat, he found the controversy raging 
between the two Houses respecting the terms in which 
King James's flight should be described ; the Commons 
having proposed the expression that " he had abdicated 
the throne," and the Lords insisting on the word "de- 
serted." This was by no means a foolish fight, about 
equipollent language, as it is generally described ; for 
" abdication" was to lead to the appointment of a new 
occupier of a vacant throne, and " desertion" to the ap- 
pointment of a regency to govern for the lineal herr. 
Holt was deemed a great acquisition by the " abdication- 
ists," and he was immediately added to the committee 
of managers intrusted with the duty of debating the 
question in open conferences with the opposing managers 
of the Lords. His speech in the Painted Chamber (al- 
most the only specimen of his parliamentary powers) is 
preserved to us. He followed immediately after Mr. 
Somers, who had treated the subject very learnedly, and 
thus he proceeded : — 

" My Lords, 1 am commanded by the Commons to 
assist in the management of this conference. As to the 
first of your Lordships' reasons for your amendment 
(with submission to your Lordships), I do conceive it 
not sufficient to alter the minds of the Commons, or to 
induce them to change the word ' abdicated ' for your 

' Lords' Journals, 5 Pari. Hist. 32. 



^689] JOHN HOLT. 15 

Lordships' word ' deserted.' Your Lordships fiist say 
that ' abdicate' is a word not known to the common law 
of England. But, my Lords, the question is not so 
much whether it be a word as ancient as the common 
law, for the Commons would be justified in using it if it 
be a word of known and certain signification. It is de- 
rived from dico, an ancient Latin word, and it is fre- 
quently used by Cicero and the best Roman writers. 
But that it is a known English word, and of a known 
and certain signification with us, I will prove to you by 
the dictionary of our countryman Minshew. He has 
' abdicate,' as an English word, and says that it signifies 
to ' renounce,' which is the signification which the Com- 
mons would put upon it. So that I hope your Lord- 
ships will not find fault with their using a word so 
ancient in itself, and with such a certain signification in 
the vernacular tongue. Then, my Lords, your objection 
that it is not a word known to the common law of Eng- 
land, surely cannot prevail, for your Lordships very well 
know we have very few words in our tongue that are of 
equal antiquity with the common law ; your Lordships 
know the language of England is altered greatly in the 
succession of ages and the intermixture of other nations; 
and if we were obliged to make use only of words cur- 
rent when the common law took its origin, what we 
should deliver in such a dialect would be very difficult 
to be understood. Then your Lordships tell us that 
' abdication ' by the civil law is ' a voluntary express act 
of renunciation.' I do not know if your Lordships 
mean a renunciation by formal deed. If you do, I confess 
I know of none executed by King James before he with- 
drew from the realm. But, my Lords, both by the civil 
law, and by the common law, and by common sense, 
there are express acts of renunciation which are not by 
deed ; for, if your Lordships please to observe, govern- 
ment is under a trust, and a deliberate violation of that 
trust is an express renunciation of it, although not by 
formal deed. How can a man in reason or sense more 
atrongly express a renunciation of a trust than by sub- 
verting it, his actions declaring more strongly than any 
words spoken or written could do that he utterly re- 
nounces it ? Therefore, my Lords, I can only repeat in 



i6 REIGN OF WILLIAM AND MARY. [1689 

conclusion, that the doing an act inconsistent with the 
being and end of a thing shall be construed a renuncia- 
tion or abdication of that thing.'" _ . 

The Lords, probably, were not much convinced by 
such reasoning; but, finding public opinion strongly 
against them, and alarmed by William's threat that, if a 
regency should be longer struggled for, he would return 
to Holland, they yielded, — the throne was formally de- 
clared to be vacant, and a joint address of the two 
Houses was presented to the Prince and Princess of 
Orange, requesting them to take possession of it as King 
and Queen. 

No sooner were they proclaimed than a patent was 
made out for Sir John Holt as their Prime Sergeant, and 
he took the oaths of allegiance to them. After the 
" Convention " had been turned into a " Parliament," he 
spoke only in one debate during the short time he re- 
mained a member of the House of Commons. This was 
on the difficult question, " What was to become of the 
taxes which had been voted during the life of James 
II. ?" Sergeant Holt contended that they were still 
payable, as James II., though he had ceased to reign, 
pvas still alive, and that they passed with the Crown to 
King William and Queen Mary. He urged, with much 
5ublety, that the grant had been made to the Crown of 
England during the life of an individual, and, therefore, 
while this individual survived, those wearing the crown 
were entitled to the benefit of it.' The more prudent 
course, however, was adopted of making a fresh grant of 
the taxes to the new sovereigns. 

Holt does not appear to have taken any part in 
framing the "Declaration of Rights" or the "Bill of 
Rights." I do not think' that he ever would have been 
a great debater, or would have acquired much reputa- 
tion as a statesman. The felicity of his lot proved to 
be, that he was placed in the situation of all others the 
best adapted to his natural abilities, to his acquirements, 
and to his character. 

William and his ministers were laudably anxious to 
elevate to the bench the most learned and upright men 
that could be found in the profession of the law, the cor- 

' 5 Pari. Hist. "c. » 5 Pari. \_\^x.. 140, 174. 



[689.] JOHN HOLT. 



>) 



ruption and incompetency of the Judges having been 
one of the chief grounds on which the nation had re- 
solved upon a change of dynasty. Great deliberation 
was necessary for this purpose, and fortunately there 
was time to devote to it. Judi(;ial business had been 
entirely suspended since the late King's flight ; and 
during Hilary Term, which ended on the 12th of Feb- 
ruary, all the courts in Westminster Hall had been 
closed. After many consultations, — to avoid all favor- 
itism, the following plan was adopted : that every, privy 
councilor should bring a list of the twelve persons whom 
he deemed the fittest to be the twelve Judges ; and that 
the individuals who had the greatest number of suffrages 
should be appointed. It is a curious fact, that, howso- 
ever the lists of the different privy councilors varied, 
they all agreed in first presenting the name of Sir John 
Holt ; — such was his reputation for law, — such satisfac- 
tion had he given in dispensing justice when Recorder 
of London, — and in such respect was he held for his con- 
sistent career in public life. The King willingly ratified 
this choice, and when the appointment was announced 
in the London Gazette it was hailed with joy by the 
whole nation.' The new Chief Justice was sworn in be- 
fore the Commissioners of the Great Seal on the 19th of 
April, and took his seat in the Court of King's Bench on 
the first day of Easter Term following.' 

According to the ancient traditions of Westminster 
Hall, the anticipation of high judicial qualities has been 
often disappointed. The celebrated advocate, when 
placed on the bench, embraces the side of the plaintiff 
or of the defendant with all his former zeal, and — un- 
conscious of partiality or injustice — in his eagerness for 
victory becomes unfit fairly to appreciate conflicting 
evidence, arguments, and authorities. The man of a 
naturally morose or impatient temper, who had been re- 
strained while at the bar by respect for the ermine, or 
by the dread of offending attorneys, or by the peril of 
being called to a personal account by his antagonist for 

' Own Times, iii. 6. At the same time he was elected a Governor of the 
Charter-House in ihe room of Lord Chancellor Jeffreys. — Corresp. of E. of 
Clar. ii. 276. 

' He was sworn a member of the Privy Council, August 25, 1689. 
Ill — 2. 



i8 REIGN OF WILLIAM AND MARY. [1689. 

impertinence, — when he is constituted a living oracle of 
the law, — puffed up by self-importance, and revenging 
himself for past subserviency, is insolent to his old com- 
petitors, bullies the witnesses, and tries to dictate to the 
jury. The sordid and selfish practitioner, who, while 
struggling to advance himself, was industrious and ener- 
getic, having gained the object of his ambition, proves 
listless and torpid, and is quite contented if he can 
shuffle through his work without committing gross blun- 
ders or getting into scrapes. Another, having been more 
laborious than discriminating, when made a judge, hunts 
after small or irrelevant points, and obstructs the busi- 
ness of his court by a morbid desire to investigate fully 
and to decide conscientiously. The recalcitrant barris- 
ter, who constantly complained of the interruptions of 
the court, when raised to the bench forgets that it is his 
duty to listen and be instructed, and himself becomes a 
by-word for impatience and loquacity. He who retains 
the high-mindedness and noble aspirations which dis- 
tinguished his early career may, with the best intentions, 
be led astray into dangerous courses, and may bring 
about a collision between different authorities in the 
state which had long moved harmoniously, by indis- 
creetly attempting new modes of redressing grievances, 
and for an uncalled-for display of heroism. 

None of these errors could be imputed to Holt. From 
his start as a magistrate he exceeded the high expecta- 
tions which had been formed of him, and during the 
long period of twenty-two years he constantly rose in 
the admiration and esteem of his countrymen. To un- 
sullied integrity and lofty independence he added a rare 
combination of deep professional knowledge with ex- 
quisite common sense. According to a homely but ex- 
pressive phrase, " there was no rubbish in his mind." 
Familiar with the practice of the court as any clerk, — 
acquainted with the rules of special pleading as if he 
had spent all his days and nights in drawing declarations 
and demurrers, — versed in the subtleties of the law of 
real property as if he had confined his attention to con- 
veyancing, — and as a commercial lawyer much in ad- 
vance of any of his contemporaries, — he ever reasonec" 
logically,— appearing at the same time instinctively ai 



1689.] JOHN HOLT. 19 

quainted with all the feelings of the human heart, and 
versed by experience in all the ways of mankind. He 
may be considered as having a genius for magistracy, as 
much as our Milton had for poetry, or our Wilkie for 
painting. Perhaps the excellence which he attained may 
be traced to the passion for justice by which he was con- 
stantly actuated. This induced him to sacrifice ease, and 
amusement, and literary relaxation, and the allurements 
of party, to submit to tasks the most dull, disagreeable, 
and revolting, and to devote all his energies to one ob- 
ject, ever ready to exclaim — 

..." Welcome business, welcome strife, 
Welcome the cares of ermined life ; 
The visage wan, the purblind sight, 
The toil by day, the lamp by night. 
The tedious forms, the solemn prate, 
The pert dispute, the dull debate. 
The drowsy bench, the babbling hall, — 
For thee, fair Justice, welcome all ! ! !" 

Holt derived much advantage in his own time from 
the contrast between him and the Judges who had re- 
cently preceded him. Accordingly, his contemporaries 
speak of him with enthusiasm. Burnet, after giving an 
account of the manner in which the Revolution Judges 
were selected, says, " The first of these was Sir John 
Holt, made Lord Chief Justice of England, then a 
young man for so high a post, who maintained it all his 
time with a great reputation for capacity, integrity, 
courage, and dispatch." ' Said the Tatler, " He was a 
man of profound knowledge of the laws of his country, 
and as just an observer of them in his own person. He 
considered justice as a cardinal virtue, not as a trade for 
maintenance. The criminal before him knew that, though 
his spirit was broken with guilt, and incapable of lan- 
guage to defend itself, his judge would wrest no law to 
destroy him, nor conceal any that would save him. He 
never spared vice ; at the same time he could see through 
the hypocrisy and disguise of those who have no pre- 
tense to virtue themselves but by their severity to the 
vicious."' 

The lustre of his fame in latter times has been some- 
what dimmed by our being accustomed to behold judges 
' Own Times, iii. 6. ' Tatler. No. xiv. 



ao REIGN OF WILLIAM AND MARY. [1689- 

little inferior to him ; but we ought to remember that 
is his light which has given splendor to these luminarif 
of the law. During a century and a half, this countr 
has been renowned above all others for the pure and ei 
lightened administration of justice ; and Holt is th 
model on which, in England, the judicial character hj 
been formed. 

He complained bitterly of his reporters, saying thj 
the skimblescamble stuff which they published woul 
" make posterity think ill of his understanding, and thj 
of his brethren on the bench." He chiefly referred to 
collection of Reports called " MODERN," embracin 
nearly the whole of the time when he sat on the bencl 
— which are composed in a very loose and perfunctor 
manner. More justice is done to him by Salkeld, Cai 
thew, Levinz, Shower, and Skinner, — but these do littl 
more than state drily the points which he decided, an 
we should have been left without any adequate memc 
rial of his judicial powers had it not been for admirabl 
Reports of his decisions published after his deatl 
These, beginning with Easter Term, 6 W. & M., wer 
compiled by Lord Raymond, who was his pupil, an 
who became his successor. Many of them are distir 
guished by animation as well as precision, and they forr 
a delightful treat to the happy few who have a genuin 
taste for juridical science. 

In deciding private rights, Chief Justice Holt's grea 
achievement was, that he moulded the old system whic 
he found established, to the new wants of an altere 
state of society. The rules of the common law ha 
been framed in feudal times, when commerce was nearl 
unknown and personal property was of little value 
Manufactures were now beginning to flourish ; there wa 
an increased exchange of commodities with foreig 
countries ; and the English Colonies in America wer 
rising in importance. Yet, it having been adjudged i 
the Year-Books that " a chose in action (or debt) car 
not be transferred, because livery of seisin cannot b 
given of it as of land," the negotiability of bills of ej 
change and of promissory notes (or goldsmiths' notes, £ 
they were called) was in a state of utter confusion, an 
nobody could tell what were the liabilities or remedie 



I7I0.J JOHN HOLT. 



31 



upon them." ' By a long series of decisions, and by an 
act of parliament which he suggested, he framed the 
code by which negotiable securities are regulated, nearly 
as it exists at the present day. He likewise settled 
several important questions in the law of insurance, 
although it was reserved for Lord Mansfield to expand 
and to perfect this important branch of our jurispru- 
dence. From Holt's acquaintance with the writings of 
the civilians, he most usefully liberalized, defined, and 
illustrated the general law of contracts in this country. 

The most cekorated case which he decided in this de- 
partment, was that of Coggs v. Bernard, in which the 
question arose, " whether, if a person promises without 
reward to take care of goods, he is answerable if they 
are lost or damaged by his negligence ?" In a short com- 
pass he expounded with admirable clearness and accu- 
racy the whole law of bailment, or the liability of the 
person to whom goods are delivered for different pur- 
poses on behalf of the owner ; availing himself of his 
knowledge of the Roman civil law, of which most Eng- 
lish lawyers were as ignorant as of the Institutes of 
Menu. Thus he began : — 

" There are six sorts of bailments : — First, a mere de- 
livering goods by one man to keep for the use of the 
owner ; and this I call a depositum. The second sort is 
where goods are lent to a friend gratis, to be used by 
him ; and this is called commodatum, because the thing 
is to be restored in specie. The third sort is where 
goods are left with the bailee, to be used by him for hire : 
this is called locatio et conductio : the lender is called 
locator, and the borrower conductor. The fourth sort is 
where goods are delivered to another as a pawn, to be a 
security to him for money borrowed of him by the 
bailor; and this is called in Latin vadium. The fifth 
sort is where goods are delivered to be carried, or some- 
thing to be done about them, for a reward to be paid by 

' It was then doubted whether any one could draw, accept, or indorse a 
bill of exchange except a merchant ? — whether notice of the dishonor of a 
bill was necessary to charge the drawer or indorser ? — whether an indorser 
was liable except on default of the drawer ? — whether there was any dis- 
tinction betweefi foreign and inland bills? — whether interest was recover- 
able on dishonored bills ? and whether a promissory note, payable to order, 
was transferable by indorsement ? 



33 REIGN OF WILLIAM AND MARY. \^^\ 

the person who delivers them to the bailee. The sixt 
sort is where there is a delivery of goods to somebod] 
who is to carry them or do something about them grati: 
without any reward for such his carriage or work ; whic 
is the present case." 

He then elaborately goes over the six sorts of bail 
ment, showing the exact degree of care reqi^ired on th 
part of the bailee in each, with the corresponding degre 
of negligence which will give a right of action to th 
bailor. In the last he shows that, in consideration o: 
the trust, there is an implied promise to take ordinar 
care ; so that, although there be no reward, for a los 
arising from gross negligence, the bailee is liable to thi 
bailor for the value of the goods. 

Sir William Jones is contented that his own masterh 
" Essay on the Law of Bailment" shall be considerec 
merely as a commentary upon this judgment ; and Pro 
fessor Story, in his " Commentaries on the Law of Bail 
ments," represents it as " a prodigious effort to arrang< 
the principles by which the subject is regulated, in j 
scientific order." 

Holt was the first to lay down the doctrine, which wa! 
afterwards fully established in the case of Somerset th« 
negro,' that the status of slavery cannot exist in Eng 
land, and that as soon as a slave breathes the air of 
England he is free. The question originally arose before 
him in a very technical shape. In point of fact, a slave 
had been sold in Virginia, where slavery was allowed b> 
law; and, an action being brought in the Court of 
King's Bench for the price, the declaration stated thai 
"the defendant was indebted to the plaintiff, in the 
parish of St. Mary-le-Bow, in the ward of Cheap, in the 
City of London, for a negro slave there sold and deliv- 
ered," — allegations of time and place in such proceed- 
ings being generally immaterial. But on this occasion 
after a verdict- for the plaintiff, there was a motion in 
arrest of judgment because the contract in respect of 
which the supposed debt arose, was illegal. Holt, C. J. : 
" As soon as a negro comes into England he is free; one 
maybe a viUein in England, but not a slave. The action 
would have been maintainable if the sale had been 
' 20 St. Tr. 23. 



I7IO.] yOHN HOLT. t3 

alleged to be in Virginia, and that, by the law of 
the country, slaves are saleable there." Judgment ar- 
rested^ 

Subsequently, an action of trover was brought in the 
Court of Queen's Bench to recover the value of a negro 
alleged to be the property of the plaintiff, and to have 
been unlawfully detained by the defendant. The plain- 
tiff's counsel relied upon a decision of the Court of 
Common Pleas, "that trover will lie for a negro, because 
negroes are heathens, and therefore a man may have 
property in them, and, without averment, notice may be 
taken judicially that negroes are heathens." But, per 
Holt, C. J. : " Trover does not lie for a black man more 
than for a white. By the common law no man could 
have a property in another man, except in special cases, 
as in a villein, or a captive taken in war ; but in Eng- 
land there is no such thing as a slave, and a human 
being never was considered a chattel to be sold for a 
price, and, when wrongfully seized, to have a value put 
upon him in damages by a jury like an ox or an ass.'" 

He likewise scouted the doctrine about " forestalling 
and regrating," by which commerce continued to be 
cramped down to the end of the reign of George III. ; 
showing that, if acted upon, every man who wished to 
have a dish of fish must go and buy it at Billingsgate, 
as it would be unlawful for fishmongers to buy turbot or 
lobsters there for the purpose of selling them again.' 

He showed considerable boldness in deciding that 
under the statute of Elizabeth, subjecting to a penalty 
all who do not frequent their parish church on Sunday, 
a man is excused who frequents any other church. 
JHo/t, C. J. : " Parishes were instituted for the ease and 
benefit of the people, and not of the parson, that they 
might have a place certain to repair to when they 
thought convenient, and a parson from whom they had 
right to receive instructions ; and if every parishioner is 
obliged to go to his parish church, then the gentlemen 
of Gray's Inn and Lincoln's Inn must no longer repair 
to their respective chapels, but to their parish churches ; 

' Smith V. Brown, Cases temp. Holt, 405. 

' 3 Keble, 685 ; i Lord Raym. 146 ; 2 Lord Raym. 1275 ; Salk. 666. 

* I Shower, 292. 



«4 REIGN OF WILLIAM AND MARY. [lyjo. 

otherwise they may be compelled to it by ecclesiastical 
censures.'" 

He put an end to the practice which had hitherto 
prevailed in England, and which still prevails in France, 
of trying to show the probability of persons having com- 
mitted the offense for which they are tried by giving 
evidence of former offenses of which they are supposed 
to have been guilty. Thus, on the trial before him of 
Harrison, for the murder of Dr. Clench, the counsel for 
the prosecution calling a witness to prove some felo- 
nious design of the prisoner three years before, the 
Judge indignantly exclaimed, " Hold, hold ! what are 
you doing now ? Are you going to arraign his whole 
life ? How can he defend himself from charges of which 
he has no notice ? and how many issues are to be raised 
to perplex me and the jury? Away, away! that ought 
not to be ; that is nothing to this matter."" 

He likewise put an end to the revolting practice of 
trying prisoners in fetters. Hearing a clanking when 
Cranburne, charged with being implicated in the " As- 
sassination Plot," was brought to the bar to be arraigned, 
he said, without any complaint having been made to 
him, "I should like to know why the prisoner is brought 
in ironed. If fetters were necessary for his safe custody 
before, there is no danger of escape or rescue here. Let 
them be instantly knocked off. When prisoners are 
tried, they should stand at their ease."' 

A still more important improvement in criminal trials, 
on his suggestion, was introduced by Parliament passing 
an act which, for the first time, allowed witnesses called 
for the prisoner to be examined upon oath.* 

Holt's associates in the King's Bench were very 
respectable men, who had either been removed for their 
independence by James H., or were selected from the 
bar for knowledge and good character. They occasion- 
ally differed from him, but never factiously combined 
against him. We have on the contrary, some remark- 
able instances of their candor. Thus, in Regina v. 
Tutchin, Powys and Gould having delivered opinions 
one way, and Powell and Holt the other, the report 

' Britton V. Standish, Cases Temp. Holt, 141. 

• 12 St. Tr. 833-874. ' 13 St. 221. * I Ann, st, 2. c. 9. 



1710.] JOHN HOLT. 



«S 



concludes with this " Memoraudum ; Powys, Justice, re- 
canted instanter, and Gould, Justice, hcesitabat."^ At 
times he was too subtle and profound for them. Of this 
Lord Laymond gives an instance in language which 
shows that he had no great veneration for the puisnies. 
After mentioning a decisive objection to an action 
started by the Chief Justice, he says, " The three judges 
seemed to be in a surprise, and not, in truth, to com- 
prehend this objectioK ; and, therefore, they persisted 
in their former opinion, talking of ' agreements^ ' intent 
of the party ^ ' binding of the land,' and I kno/W not what ; 
and so they gave judgment for the plaintiff, against the 
opinion of Holt, Chief Justice.'" 

We have a remarkable proof of the overwhelming 
weight which his opinion carried, even when he was 
wrong. An action being brought against the Post- 
master General for the loss of Exchequer bills occasioned 
by the negligence of an inferior agent in the employ- 
ment of the Post Office, Holt, by a false analogy, be- 
tween this and actions against the sheriff and other offi- 
cers who are supposed to do in person the duty the 
breach of which is complained of, maintained that the 
Postmaster General was liable. Powys, Gould, and 
Turton, taking a juster view of the subject, said that, 
although an action lies against a public officer at the suit 
of those who suffer a private damage from his default, 
it must be brought against the person who has violated 
the law ; and that to apply the maxim respondeat supe- 
rior to the head of a great department of the state 
would be injurious to the individual, and detrimental to 
the public. So judgment was given for the defendant. 
But the plaintiff having declared that he would bring a 
writ of error in the Exchequer Chamber, and, if neces- 
sary, to the House of Lords, the Postmaster General 
was so frightened, and considered it so certain that Holt 
would be declared to be in the right, that, rather than 
continue the litigation, he paid the whole of the demand.' 

One of the most whimsical questions which arose be- 

■ 6 Mod. 287. ' Brewster v. Kitchen, i Lord Raym. 322. 

' Lowe v. Sir Robert Cotton, i Lord Raym. 646. This strange opinion o\ 
Holt's was solemnly overruled by the Court of King's Bench in Lord Mans- 
field's time ; the law ever since being considered quite settled in favor of 
the Postmaster General- Whitefield v. Lord Le Despencer, Cowp. 745, 



i6 REIGN OF WILLIAM AND MARY. [1690. 

fore him he thus settled : " If a man be hung in chains 
on my land, after the body is consumed, I shall have 
the gibbet and chain as affixed to the freehold.'" 

But, as a mere Judge settling civil rights, great as were 
his merits, he probably would soon have been known 
only to dull lawyers who search for precedents. It 
was by his conduct in presiding on the trial of state pros- 
ecutions, and in determining questions of constitutional 
law in which the two Houses of Parliament were parties, 
that he acquired an immortal reputation. 

During the two last preceding Stuart reigns, tl\e ad- 
ministration of criminal justice in cases in which the 
Crown was concerned had been becoming worse and 
worse, till at last it reached the utmost verge of infamy. 
The most powerful justification of the Revolution will 
be found in the volumes of the State Trials; and I have 
heard the late Lord Tenterden, a very zealous though 
enlightened defender of indefeasible hereditary right, de- 
clare that " they almost persuaded him to become a 
Whig." Chief Justices, worse than any before known, 
were turned out to make place for successors who were 
still more atrocious. From the proceedings on the trials 
of Alderman Cornish and of Mrs. Gaunt we may see that, 
from a course of unblushing violation of the rules framed 
for the protection of innocence, the judges had lost all 
sense of decency, and were in the habit of browbeating 
witnesses, insulting juries, and seeking to crush the ac- 
cused, without any consciousness of impropriety. 

Holt had been Chief Justice little more than a year, 
when, as a Criminal Judge between the Crown and the 
subject, his qualities were put to a severe test. Lord 
Preston, a Scottish nobleman, had engaged in a very for- 
midable conspiracy to dethrone King William and to re- 
store King James. Had he succeeded, he would have 
been celebrated in history for his loyalty ; and the first 
consequence would have been, that the ministers and 
judges now acting under royal authority would have 
been tried as traitors. According to recent examples, 
the prisoner, if not attainted by act of parliament with- 

• I Lord Raym. 738. But the French Courts lately decided that a stone 
falling from the heavens belongs to the finder and not the owner of the field 
>n which it falls. 



1690.1 JOHN HOLT. 



27 



out the form of trial, ought, after reading some deposi- 
tions against him taken in his absence, and the examina- 
tion of a pretended accomplice, to have been stopped as 
often as he attempted to speak in his defence; and, upon 
a verdict of guilty by a packed jury, to have been led off 
to execution. But this was a new era in our judicial 
annals. Lord Preston had quite as patient and as fair a 
trial as any prisoner would have before Lord Denman in 
the reign of Queen Victoria. He first resolutely insisted 
that he was not liable to be tried in this fashion, because 
he was a peer of Scotland. When his plea was properly 
overruled, he expressed some apprehension that he might 
have given offence by his pertinacy ; but the Chief Jus- 
tice mildly observed, " My Lord, nobody blames you, 
though your Lordship do urge matters that cannot be 
supported ; and we shall take care that they do not tend 
to your Lordship's prejudice. We consider the condition 
you are in ; you stand at the bar for your life ; you shall 
have all the fair and just dealing that can be ; and the 
Court, as in duty bound, will see that you have no wrong 
done you." Although a clear case for the Crown was 
made out by witnesses of undoubted credit, and the 
Chief Justice summed up the evidence with perfect ac- 
curacy and fairness, the prisoner repeatedly interrupted 
him. Holt, C. J. : " Interrupt me as much as you please, 
if you think I do not observe right ; I assure you I will 
do you no wrong willingly." Lord Preston : " No, my 
Lord, I see it well enough that your Lordship would 
not." When the jury were about to retire to consider 
of their verdict, Lord Preston requested to speak again, 
although he had been before fully heard. Holt, C. jf. : 
" It is contrary to the course of all proceedings to have 
anything said to the jury after the Court has summed up 
the evinence ; but we will dispense with it : what further 
have you to say ?" Lord Preston : " I humbly thank 
your Lordship ; I am not acquainted with such proceed- 
ings, but whatever my fate may be, I cannot but own 
that I have had a fair trial for life." He was then pa- 
tiently heard, and he chiefly complained of some harsh 
treatment he had experienced from the new Government 
when he wished as he alleged, to live quietly in the coun- 
try. Holt, C. J. : " Suppose your Lordship did think 



28 REIGN OF WILLIAM AND MARY. [169C 

yourself hardly used, yet your Lordship must remembe 
it was in a time of danger your Lordship was taken up 
and you had showed your dissatisfaction with the pres 
ent Government ; and, therefore, they were not to b( 
blamed if they secured themselves against you." The 
jury, without hesitation, found a verdict of GuiLTY 
but, with the entire concurrence of the Chief Justice, the 
prisoner afterwards received a free pardon.' 

When Charnock, and the other conspirators engaged ir 
the attempt upon the life of King William, came to be 
tried before him, although he was obliged to-refuse then- 
a copy of the indictment and the assistance of counse 
because the statute to regulate trials for high treason hac 
not come into operation, he conducted the trial with the 
utmost impartiality and moderation, and in strict con- 
formity to the rules of evidence as we now understand 
them. At the same time, he answered with firmness 
the objection that " words cannot amount to treason," 
marking the distinction whether the 'words\^2.v& reference 
to an act. Holt, C. J. : "Now I must tell you, gentle- 
men, it is true in some cases that words, however sedi- 
tious, are not treason ; for such words loosely spoken, 
without relation to any act or design, are only a mis- 
deameanor. But arguments, and words of persuasion, to 
engage in a design on the King's life, and directing 01 
proposing the best way for effecting it, are overt acts of 
high treason. If two agree together to kill the King, 
though the agreement be verbal only, they are guilty of 
this offense ; consulting together for such a purpose, 
though there is nothing reduced to writing, and nothing 
done upon it, is an overt act of high treason." " The 
prisoners were very justly found guilty, and executed. 

Before Ambrose Rookwood, implicated in the same 
conspiracy, could be brought to trial, the statute for reg- 
ulating trials for high treason had come into operation ; 

' 12 St. Tr. 646-822. 

' 12 St. Tr. 1451. Afterwards on the trial of Sir William Parkyns, con- 
cerned in the same plot, Holt, in commenting on the treasonable consult 
observed, — " But," says Sir William Parkyns, " this Is only words, and word: 
are not treason, they are words that relate to acts, and if you believe thai 
they were spoken they amount to treason." 13 St. Tr. 132. These passages 
if cited, might have considerably shortened certain debates in the House of 
Commons in the session of 1848, on the " Bill for the Protection of the Crowt 
and Government." 



t696.J JOHN HOLT. 



29 



and Sir Bartholomew Shower, being assigned as counsel 
for him, was making some apologies for the boldness of 
the line of defense adopted. Holt, C. J. : " Never make 
apologies, Sir Bartholomew, for it is as lawful for you to 
be counsel in this case as it is in any other case in which 
the law allows counsel. It is expected you should do 
your best for those you are assigned to defend against 
the charge of high treason (though for attempting the 
King's life), as it is expected in any other case that you 
do your duty to your client." ' He summed up, how- 
ever, with energy, taking care, as he always properly 
did, to assist the jury in coming to a right conclusion. 
Thus he began : — " The prisoner is indicted for high 
treason in designing and compassing the death of .the 
King, which was to be effected by an assassination in the 
most barbarous and wicked manner, being to surprise 
the King and murder him in his coach. The question, 
gentlemen, is, whether this prisoner be guilty of the 
crime, or no ?" ' 

Holt's conduct, in presiding at these trials, was ap- 
plauded even by the Tories. But a charge was brought 
against him, by Ralph, of straining the law of high 
treason to please the Government, in the case of Sir 
John Friend.' The bigoted historian, having bitterly 
-censured the conviction, says, with affected candor, 
" The Lqrd Chief Justice Holt, who presided on this 
■occasion, has in general the character of an upright 
judge; but almost all lawyers have narrow minds, and, 
toy the whole drift of their studies, find themselves 
biassed to adhere to the King against the prisoners." 
The direction given to the jury on this occasion, when 
examined, will be found quite unexceptionable. The 
prisoner was indicted for compassing the King's death, 
and was clearly proved to have had the design of de- 
throning him. An overt act relied upon was, despatching 
a deputy to France to invite the French King to send 
over an army to assist those confederated against the 
Government. Having summed up the evidence, the 
Chief Justice said : — 

" Now, Sir John Friend insists, as a matter of law, 
that as the statute of Edward HI. makes two treasons, 

' 13 St. Tr. 154. » lb. 263. 3 lb. I 



30 REIGN' OF WILLIAM AND MARY. [1704 

one compassing the death of the King, and another the 
levying of war ; and as war was not actually levied in 
this case, a bare conspiracy or design to levy war does 
not come within this law against treason. For that, I 
must tell you, gentlemen, that if there be only a con- 
spiracy to levy war, it is not treason ; but if the design 
be either to kill the King, or to depose him, or imprison 
him, or put any force or restraint upon him, and the way 
or method of effecting the object is by levying war, then 
the conspiracy to levy war for that purpose is high 
treason, though no war be levied ; for such conspiracy 
is an overt act, proving the compassing the death of the 
King. If a man designs the death, deposition, or de- 
struction of the King, and, to effect the design, agrees 
and consults to levy war, — that this should not be high 
treason, no war being actually levied, is a very strange 
doctrine, and the contrary has always been held to be 
law. There may be war levied without any design upon 
the King's person, or endangering of it, which, if ac- 
tually levied, is high treason ; but a bare design to levy 
war, without more, does not amount to that offense." 

This distinction is fully justified by prior authorities, 
and has ever since been adhered to. Erskine, in his 
celebrated defense of Hardy, actually cites this very 
passage with applause, — saying, " If I had anything at 
stake short of the life of the prisoner, I might sit down 
as soon as I have read it; for if one did not know it 
to be an extract from an ancient trial, one woufd say it 
was admirably and accurately written for the present 
purpose." ' 

Without meaning any reflection upon Holt, who 

' 13 St. Tr. 1-64. The late statute, 11 Vict., c. 12, will probably for ever 
put an end to such questions, as we shall henceforth have no trials for high 
treason unless where there has been an actual design against the person of 
the sovereign, or an actual levying of war, or an actual adhering to the 
King's enemies. Conspiracies to bring about a revolution in the govern- 
ment, or to levy war, will henceforth be prosecuted as felonies. This ap- 
pears to me to be a great improvement in our criminal code. The construc- 
tion put upon the statute of Edward III., that a conspiracy to levy war was 
an overt act, to prove a compassing of the King's death, was very strained 
and far-fetched. Different offenses against the state are now properly dis- 
criminated, and between treason and misdemeanor an intermediate class is 
established, with easy means of prosecution and an appropriate punishment. 
The conviction of Mitchell upon this statute has proved its efficacv fMav 
29, 184S.) 1 \ 1 



i7°4j JOHN HOLT. 31 

always maintained his character as a good Whig, I must 
mention his doctrine respecting the liberty of the press, 
which shows that, in the second reign after the Revolu- 
tion, the legal right of political discussion had not yet 
been acquired. If this doctrine were now acted upon, 
the " Government Journal," which supports, through 
thick and thin, all the measures of the administration 
for the time being, would have a monopoly, and there 
is hardly a newspaper published in the United Kingdom 
which might not be prosecuted as libelous. On the trial 
of the printer of the Observator, for an article abusing 
Queen Anne's ministers pretty freely, but in language 
which we should consider very innocent, the defendant's 
counsel having attempted to justify it, Holt, C. J., ob- 
served : " I am surprised to be told that a writing is not 
a libel which reflects upon the government, and endeav- 
ors to possess the people with the notion that the gov- 
ernment is administered by corrupt persons. If writers 
should not be called to account for possessing the people 
with an ill opinion of the government, no government 
can subsist. You are to consider whether the words 
which I have read to you do not tend to beget an ill 
opinion of the administration of the government. Their 
purport is, that ' those who are employed know nothing 
of the matter, and those who do know are not employed ; 
that men are not adapted to offices, but offices to men, 
out of a particular regard to their interest and not to 
their fitness.' " The defendant was accordingly found 
guilty.' 

' 14 St. Tr. 112S. But although such was considered the letter of the 
law, the periodical press was much less decorous than at the present day, 
and the private life of public men was then mercilessly exposed and tra- 
duced. Any one now writing of political opponents as Swift did of 
Cowper, with whom he had been on terms of intimate friendship, would bo 
expelled from society. 




CHAPTER XXIV. 

CONTINUATION OF THE LIFE OF LORD CHIEF JUSTICE 

HOLT TILL THE TERMINATION OF HIS CONTESTS 

WITH THE TWO HOUSES OF PARLIAMENT. 

I NOW come to Holt's contests with the two Houses 
of Parliament, from which his popularity has prin- 
cipally arisen. The iirst was with the House of 
Lords, and throughout the whole of it he conducted 
himself most laudably— strictly confining himself within 
the jurisdiction of his court ; and, while he nobly vindi- 
cated his own independence, never seeking an oppor- 
tunity for display or wantonly hazarding a collision be- 
tween rival authorities. 

An indictment for murder having been found against 
Charles Knowllys, Esqr., and removed by certiorari into 
the Court of King's Bench, he pleaded in abatement 
" that he was a peer of the realm, and ought to be tried 
by peers, being, as of right. Earl of Banbury, and lineally 
descended from William Knowllys, created Earl of Ban- 
bury by King Charles H." That the replication stated, 
" That the prisoner had presented a petition to the Lords 
spiritual and temporal, praying that he might be tried by 
them on this charge, and that parliament had thereupon, 
secunditm legem et consuetudinem, resolved that he had 
no right to the Earldom of Banbury." There was a de- 
murrer to the replication, and the Lords very absurdly 
were much offended that the Court of King's Bench did 
not instantly, in conformity to this resolution, overrule 
the plea. But, after solemn argument, Holt gave judg- 
ment that the plea was good, and the replication 'bad — 
mainly upon the ground that this could not be considered 
res judicata — as the Lords had no authority to decide a 
question of peerage except on a reference from the 
Crown, and, therefore, that their resolution respecting 
the Earldom of Banbury was a proceeding coram iion jn- 



'694- J JOHN HOLT. 



33 



dice and a nullity. Having clearly shown the Lotds had 
no original jurisdiction on the subject, and that the ques- 
tion of the prisoner's right to be tried as a peer had 
never been judicially brought before them, he observ- 
ed. — 

" I admit that the House of Peers has jurisdiction over 
its own members, and is a supreme court ; but it is the 
law which has vested them with such ample authority, 
and therefore it is no diminution trf their power to say 
that they ought to observe the limits prescribed for them 
by this law, which, in no respects, hath made them so 
great. As to the averment in the replication that the 
judgment was ^secundum legem et consuetudinem par- 
liamenti,' I know no reason for its introduction by 
the King's counsel unless they thought to frighten 
the Judges : but I regard it not ; for though I have great 
respect and deference for both Houses of Parliament, yet 
■I sit here to administer justice according to the law of 
the land, and the oath I have sworn. Inheritances are 
to be determined not by the custom of parliament, but 
by the common law of England, which is the birthright 
of every Englishman. Custom ought to consist in usage, 
and I desire to see the precedent of such judgments. No 
precedent hath been alleged to warrant the determining 
inheritances originally per legem parliamenti. If inherit- 
ances were determinable by the Lords without their hav- 
ing jurisdiction, they would have uncontrollable power, 
and 'res est misera, ubijus est vagiim.' " 

So judgment was given in favor of the plea in abate- 
ment, and the prisoner was discharged without being 
tried. 

It is quite clear that Holt had not in the slightest de- 
gree encroached on the privileges of the House of Lords. 
His court had jurisdiction of the murder only upon the 
supposition that the party accused was a commoner, and, 
unless a sufficient answer was given to the plea that he 
was a peer, its jurisdiction was gone. The resolution of 
the Lords on his petition, being a proceeding coram non 
judice, was no answer at all, and the trial before the 
King's Bench therefore could not possibly go on. 

Knowllys, when set at liberty, still assumed the title 
of Earl of Banbury, and, two or three years afterwards, 
III — 3- 



34 



REIGN OF WILLIAM AND MAR\ [1697— 



he petitioned the Crown for a writ of summons that he 
might take his seat as a peer. This was regularly refer- 
red to the House of Lords, who found themselves^ m a 
great puzzle ; for, although they now clearly had juris- 
diction to examine and decide upon the claim, they were 
unwilling to confess their former determination ^vas in- 
valid. They very foolishly resolved to wreak their ven- 
geance upon Lord Chief Justice Holt, and they made an 
order that he should attend the Committee of Privileges 
appointed to consider the claim. He attended accord- 
ingly, when the Chairman of the Committee thus ad- 
dressed him : — 

" My Lord Chief Justice Holt : Their Lordships have 
perused the record of the Court of King's Bench relating 
to the trial of the person who calls himself Earl of Ban- 
bury for murder, from which it appears that the Court 
of King's Bench thought fit to quash the indictment 
against the said person there called Charles Knowllys,. 
Esq., although the House of Lords had determined that 
he had no right to the title of Banbury. You are now 
desired to give their Lordships an account why that 
Court whereof you are Chief Justice hath so done." 
Holt, C. J. : " I acknowledge the thing. I gave the 
judgment, and I gave it according to my conscience. 
We are trusted with the law ; we are to be protected and 
not arraigned ; we are not to give the reason for our 
judgment in this fashion, and therefore I desire to be 
excused giving any." 

He was directed to withdraw, and, after some delibera- 
tion among the members of the Committee, he was called 
in again, and asked with much solemnity "if he persisted 
in the answer he had given ?" 

HoU, C. y. .• " The record shows the judgment I gave. 
It would be submitting" to an arraignment for having 
given judgment according to law, if I should give any 
reasons here. I gave my reasons in another place at 
large. If your Lordships report this my refusal to the 
House, I shall be glad to know when you do so, that I 
may then desire to be heard in point of law. The judg- 
ment is questionable in a proper method by writ of 
error; but I am not to be thus questioned. I am not in 
any way to be arraigned for what I do judicially. The 



169S.] yOHN HOLT. 



35 



judgment may be arraigned in a proper manner, and 
then, being asked, I will state to your Lordships the rea- 
sons on which it rests. I might answer if I would, but I 
think it safest to keep myself under the protection the 
law has given me. I look upon this as an arraignment ; 
I insist upon it, if I am arraigned, I ought not to an- 
swer." 

The Committse having reported these proceedings to 
the House, a resolution was passed " to hear the Lord 
Chief Justice as to this point, whether he did right in re- 
fusing to give an account to the Committee of his rea- 
sons for his judgment in the King's Bench, in relation to 
quashing the indictment for murder against a person 
who claimed to be Earl of Banbury." Lord Chief Jus- 
tice Holt, attending, and being called on, the Lord 
Keeper said to him : — - 

" You are required to give an account why you re- 
fused to answer the questions put to you by a committee 
of this House. You expressed a wish to be heard when 
the report was made, and their Lordships have now sent 
for you to know the reasons why you did not think fit to 
communicate to the committee the reasons for your judg- 
ment." Holt, C. J. : " My Lords, I have only respect- 
fully to adhere to what I addressed to the committee, 
which has been truly reported to your Lordships' House, 
Your Lordships constitute the highest court known in 
this kingdom before which all judgments may be 
brought; and your Lordships may affirm or reverse them 
as seems you good. I and my brother judges, according 
to immemorial usage, have a summons to attend in this 
House ad consulendum. Your Lordships have an un- 
doubted right to ask our opinion, with our reasons, on 
any question of law which comes judicially before you. 
If a writ of error should be brought before your Lord- 
ships in Rex v. Knowllys, and your Lordships ask my 
opinion upon it, I will most willingly render the reasons 
which induced me, according to my conscience, to give 
judgment for the prisoner. But I never heard of any 
such thing demanded of any judge as that, where there 
is no writ of error depending, he should be required to 
give reasons for his judgment. I did think myself not 
bound by law to answer the questions put to me. What a 



36 REIGN OF WILLIAM AND MARY. [1697— 

judge does honestly in open court, he is not to be ar- 
raigned for," 

A debate ensued, and directions were given to the 
Lord Keeper to inform him " that the questions asked 
him by the Committee were not intended to accuse.'' 

In truth, this was abandoning the only ground that 
could be taken for urging the questions. If there had 
been any suspicion of corruption, the House, in the ex- 
ercise of its inquisitorial powers, might have taken cog- 
nizance of the matter, and, perhaps, examined a party 
accused ; but, in the absence of all notion of improper 
motive, it was quite plain that a judge could not be in- 
terrogated respecting the reasons for a judgment not ap- 
pealed from. Under such circumstances, the answers 
could only be to gratify impertinent curiosity. Holt 
must have been aware of the advantage he had, but he 
contented himself with saying, " Besides the danger of 
accusing myself, I have other good and sufficient rea- 
sons for declining to answer the questions propounded to 
me." 

The hour of dinner had arrived, which has always been 
enough to stop important proceedings in their Lordships' 
house. The debate was therefore adjourned till the fol- 
lowing Monday, at which time the Chief Justice was 
again ordered to attend. In the meanwhile their Lord- 
ships came to their senses, and found that they had got 
into a very foolish scrape. The only step they could now 
take to assert their authority was, to commit the Chief 
Justice to prison ; and, although I do not exactly know 
what legal remedy in that case he would have had, the 
probability is that, practically, he would have been re- 
leased by a general rising of the population of London, 
— the struggle not adding much to the credit or author- 
ity of their Lordships. ^ The House, therefore, by an ad- 
journment, prudently avoided meeting on the day ap- 
pointed, whereby the order dropped, and it never was 
renewed. The public had strongly taken the side of the 
Chief Justice, and his health was given with enthusiasm 
at all public meetings throughout the kingdom.' 

He most cautiously abstained from mixing in party 

^ ' '\^J;7o "67-1207 ; I Lord Raym. 10 ; Carth. 297 ; Salk. 50Q : Lord 
Campbells Speeches, 326, 



1700.J yOHN HOLT. 37 

politics. Not even in private conversation would he 
offer an opinion on the question of the Spanish Succes- 
sion, and he was entirely ignorant of the negotiation of 
the Partition Treaties. He remained always on cour- 
teous terms with Lord Somers, but there never was much 
familiarity between them. In the famous " Bankers' 
Case," which was factiously agitated by many, he, from 
a sense of duty, gave a judgment which was highly agree- 
able to the Tories. Charles II., having made grants by 
way of annuity out of the hereditary revenues of the 
Crown, as a compensation to those who had been de- 
frauded by the shutting up of the Exchequer during the 
CABAL administration, the question was whether these 
grants were binding on King William III.? In the Ex- 
chequer Chamber, Holt supported the claim, on prin- 
ciples which we are rather surprised to find propounded 
by a Whig since the Revolution : — 

" It is objected," said he, " that this power of the 
King, of alienating his revenue, may be a prejudice to 
his people, to whom he must recur continually for sup- 
plies. I answer that the law has not such dishonorable 
thoughts of the King, as to imagine he will do anything 
amiss to his people in those things in which he hath power 
to do so. But that which I insist on is, that it is absurd 
in its nature to restrain the King from a power of alien- 
ating his revenues, of which he is seized in fee. It is 
against the nature of the being of a King that he should 
have less power than his people. Suppose that before 
his accession the King was seized of lands, the crown 
descending upon him, he would be seized /wr^ corona ; 
— and shall he then have less power over those very 
lands than he had when a private person ? Shall he 
now be disabled to alien by being a King ? This would 
be against a well-known maxim, that the descent of the 
crown takes away all disability. Then it is repugnant 
to the constitution of the government. Suppose the 
King should be under a sudden danger of being invaded : 
if he could not raise money by alienating his revenue, 
the nation might perish; for he could not otherwise 
raise money than by an act of pariiament, for which 
there might not be time. And there ought to be a 
power in all governments to reward persons that deserv'^ 



38 REIGN OF WILLIAM III. [1700. 

well, for rewards and punishments are the supporters of 
all governments ; and it has been the constant usage of 
the kings of England to reward persons deserving of the 
government out of the crown revenues by pensions, and 
giving estates to support the titles of Earl and other 
dignities. Some may say they do not deny the King 
may alienate his own demesnes or any lands that come 
to him by descent or purchase, but this revenue was 
settled by act of parliament on the Crown, and therefore 
it cannot be alienated. I do not find any such distinc- 
tion in our law books, nor any authority in the common 
or statute law that restrains the kings of England from 
alienating any sort of their revenues. What reason can 
be given why some estates should be alienable and 
others not? If an estate be settled on a subject by act 
of parliament, he may unquestionably alienate it ; and 
why shall not the King have the same privilege ? He 
has always done it. All the abbey lands were given to 
the King by act of parliament in general terms as here, 
and he has alienated the whole of them. So the Cus- 
toms have been always granted away and charged by the 
King, although they were given to him by act of parlia- 
ment. Here there was a consideration for the grant in 
the debt due from the crown to the grantees." 

He was likewise of opinion that the Bankers had a 
remedy against the King by petition, or monstrans de 
droit.^ This opinion was then overruled, — Lord Somers, 
who held the great seal, taking the opposite side ; — but 
a writ of error was brought in the House of Lords, and 
there a Tory majority reversed the judgment of the Ex- 
chequer Chamber. 

A motion was soon after made in the House of Com- 
mons for the removal of Lord Somers, and, although 
this was negatived, the King found that he could no 
longer go on with a Whig administration, and he took 
the great seal from Lord Somers, who had refused vol- 
untarily to resign it. 

King William considered that Holt was by far the fit- 
test man to succeed to it; and, suspecting that his 

> 14 St. Tr. 30. So the law then stood. The wonder is to find it so de- 
fended In the succeeding reign the power of alienation was put an end to 
by the legislature. 



»7ooJ yOHN HOLT. 39 

opinion in the Bankers' Case had been influenced by a 
wish for still higher elevation, sent for him to Hampton 
Court, and, showing him the " bauble," offered imme- 
diately to deliver it into his hand, with the title of Lord 
Chancellor, a peerage being to follow. What must have 
been the royal astonishment when Holt pronounced 
these memorable words, — " I feel highly honored by 
your Majesty's gracious offer ; but all the time I was at 
the bar I never had more than one cause in Chancery, 
and that I lost, so that I cannot think myself qualified 
for so great a trust.'" The King in vain attempted to 
shake his resolution, which was perhaps strengthened 
by the reflection that the tenure of the office he already 
held was far more secure, as there seemed little prob- 
ability of any administration being formed which could 
last many weeks. All that Holt could be induced to 
promise at this interview was, that if there should be a 
necessity for putting the great seal into commission for 
a short time, he would act as one of the Lords Commis- 
sioners. Trevor, the Attorney General, and others on 
whom it was pressed, having likewise refused it, a com- 
mission became necessary, and it was delivered to the 
joint keeping of Lord Chief Justice Holt, Lord Chief 
Justice Treby, and Lord Chief Baron Ward. 

These Lords Commissioners held it nearly a month ; 
but this was chiefly in the Vacation between Easter 
Term and Trinity Term, and we have no report of any 
of their decisions. Holt was probably surprised to find 
that he got on so well as an Equity Judge, but he felt 
no regret in transferring the great seal to Sir Nathan 
Wright, and returning to that court where he was sure 
both to decide properly and to decide with applause. 

Nothing else very memorable occurred to Holt during 
the reign of William HL There seemed a probability 
of his being placed in a difficult and delicate position, as 
adviser to the Peers, upon the impeachment of Lord 
Somers ; but he was relieved from this embarrassment 
by the quarrel between the two Houses, which put a 
sudden end to the trial. 

It is a curious fact that our " Deliverer," although pro- 
fessing such a regard for liberty, actually vetoed a bill 
' Granger, i. 164 ; Cole's Memoirs, p. 128. 



40 REIGN OF QUEEN ANNE. [1702. 

passed by the two Houses of Parliament to appoint the 
Judges quamdiu se bene gesserint, and still insisted on 
their holding during pleasure as long as he himself 
should rule, although he agreed to a clause in the " Act 
of Settlement," providing, that after the limitation of 
the crown, thereby introduced, should take effect, they 
should only be removable on the address of the two 
Houses of Parliament.' It may add to our admiration 
of Holt's independent conduct on the bench, that he 
might have forfeited his office by displeasing the Gov- 
ernment ; but as the arbitrary dismissal of Common 
Law judges had been one of the loudest complaints 
against James II., the actual peril that a Revolution 
judge ran must have been very inconsiderable. 

On the accession of Queen Anne, Holt was imme- 
diately reappointed, and under her he continued Chief 
Justice of England for eight years longer, with unabated 
energy and still increasing reputation. 

The two Houses of Parliament were soon in an un- 
precedented state of antagonism to each other. From 
the appointment of Whig bishops, from the elevatiort 
of some good Whigs to the peerage, and, I must add, 
from the superior intelligence which then distinguished 
the high aristocracy of England, — among the Lords 
there was a decided majority who supported Whig prin- 
ciples. But Anne's first House of Commons was filled 
with men of whom Addison's " Tory Fox-hunter" and 
Fielding's " Squire Western" might be considered fair 
types, — ignorant, bigoted, and factious, — professing a 
love for Church and Queen, but mostly Jacobites in 
their hearts, — and, although only secretly drinking to 
"the King over the water," openly professing an abhor- 
rence of Dissenters, among whom they classed all men 
of tolerant religious feelings. Their grand scheme was 
to perpetuate their power by disqualifying all who did 
not take the sacrament according to the rites of the 
Church of England, from being either electors or repre- 
sentatives, and by deciding on every controverted elec- 
tion in favor of their own partisans. In consequence, 
Tory candidates with only a small minority of real elect- 
ors in their favor, by making corrupt bargains with re- 
' 12 & 13 w. III. c. 2. 



I704-J JOHN HOLT. 



41 



turning officers, were sent to parliament ; and petitions 
to the House of Commons, complaining of these abuses, 
were found wholly unavailing. 

Under these circumstances began the contest about 
parliamentary privileges, which has rendered the name 
of Holt so illustrious. In the course of it he committed 
some errors, and his' zeal was sometimes that of an ad- 
vocate eager for victory, rather than of a magistrate only 
desirous of justice ; but on the whole he showed great 
discrimination as well as intrepidity, and deservedly 
earned the glory which he acquired. 

One of the most corrupt returns was by the Bailiffs of 
Aylesbury. The defeated candidates, who had a con- 
siderable majority of legal votes, being Whigs, knew 
that it would be in vain to petition the House of Com- 
mons, and it was resolved that several of the electors 
whose votes had been rejected, should respectively bring 
actions, in the Court of Queen's Bench, against the re- 
turning officers. In the first of these, one Ashby was the 
plaintiff, and he, clearly making out his case before a 
jury, recovered a verdict with large damages. The 
defendants then moved in arrest of judgment, on the 
ground that, although all the facts alleged by the plain- 
tiff were true, an action at law could not be maintained 
by him, and that the only remedy was by petition to the 
House of Commons. 

The three Puisne Judges associated with Holt were 
respectable men, but they labored under a suspicion of 
being Toryishly inclined; and, being rather of timid 
minds, they were alarmed by a species of action which 
had not been brought hitherto, although the principle 
on which it rested was as old as the law itself; and they 
severally gave opinions in favor of the defendants, — as- 
signing very weak and inconsistent reasons. Holt, of a 
bold and masculine understanding, as well as a deep 
lawyer, saw that, a private injury being sustained from 
breach of duty in a public officer, compensation ought 
to be given by legal process • and I make no doubt that 
his indignation was exalted by the thought that he was 
now resisting an attempt to deprive the subject of legal 
redress against a corrupt and arbitrary system of govern- 
ment established by a faction in the House of Cow»mQns. 



42 REIGN OF QUEEN ANNE. [1704 

Knowing that he was to be overruled in his own court 
thus, in a noble strain of judicial eloquence, he pourec 
forth arguments and authorities which he hoped migh' 
prevail in a superior tribunal, and which he was sun 
would justify him to his country : — 

Holt, C. J. : " The single question is, whether if j 
free burgess of a corporation, having an undoubted righl 
to give his vote in the election of a representative of 
the borough in parliament, be maliciously hindered fron 
giving it by the returning officer, he may maintain ar 
action against the returning officer for the injury he has 
suffered? I am of opinion that judgment ought to b« 
given for the plaintiff. My brothers differ from me in 
opinion, and they all differ from one another in the 
reasons for the opinion they have expressed. My brother 
Gould thinks no action will lie against the defendant, 
because, as he says, he is a judge; my brother Powys 
indeed says he is no judge, but quasi a judge; while my 
brother Powell thinks that the defendant is neither a 
judge, nor anything like a judge, but only an officer tc 
execute the precept, to give notice to the electors of the 
time and place of election, to assemble them togdthei 
in order to elect, to cast up the poll, and to declare which 
candidate has a majority. First, I will maintain that the 
plaintiff has a right to give his vote. Secondly, that 
being wrongfully hindered in the enjoyment of that right 
the law gives him this action for redress. From what 
my brothers have said, I find that I must begin to prove 
that the plaintiff had a right to vote. It is not to be 
doubted that the Commons of England form a part of 
the government, and have a .share in the legislature 
without whom no law passes ; but, because of their num- 
bers, this power is not exercisable by them in theii 
proper persons, and therefore by the constitution of 
England it is to be exercised by representatives choser 
by and out of themselves, who have the whole power of 
all the Commons of England vested in them. Knight: 
of the shire, citizens of cities, burgesses of boroughs 
duly elected, form the Commons' House of Parliament.' 
After entering at great length into the history of th( 
representation of counties, cities, and boroughs, he con 
tinues: " Hence it appears that every man that is ti 



1704 J JOHN HOLT. 



43 



give his vote in the election of members to serve in par- 
liament, has a several and particular right in his pri- 
vate capacity as a freeholder, citizen, or burgess. And, 
surely, it cannot be said that this is so inconsiderable a 
right as to apply that maxim to it, de minimis non curat 
lex. A right that a man hath to give his vote at the 
election of a person to represent him in Parliament, 
there to concur in the making of laws which are to bind 
his liberty and his property, is of a transcendent nature, 
and its value is set forth in many statutes. Thus 34 & 
35 H. VIII., c. 13, giving Members of Parliament for , 
the first time to Cheshire, says that, ' for want thereof, 
the inhabitants have sustained manifold dishonors, losses, 
and damages, as well in their lands, goods, and bodies, 
as in the civil and politic governance of the common- 
wealth of their said county.' Here, therefore is a ri£^/it. 
2. If the plaintiff has a right, he must of necessity have 
means of vindication if he is injured in the exercise or 
enjoyment of it. Right and remedy, want of right and 
want of remedy, are reciprocal. It would look very 
strange, when the commons of England are so fond of 
sendin'g representatives to parliament, that it should be 
in the power of a sheriff or other returning officer to de- 
prive them of such right, and yet that they should have 
no redress ; this would be a thing to be admired at by 
all mankind. My brother Powell, indeed, thinks that an 
action on the case is not maintainable because here is no 
hurt or damage to the plaintiff: but, surely, every in- 
jury imports a damage ; a damage is not merely pecu- 
niary; an injury imports a damage when a man is there- 
by hindered of his right. For slanderous words, though 
a man does not lose a penny by the speaking of them, 
yet he shall have an action, because the right to his fair 
fame is injured. So, if a man receives a slight cuff on 
the ear, though it cost him nothing, no, not so much as 
a little diachylon, yet he shall have his action, for it is a 
personal injury. It is no objection to say this leads to 
multiplicity of actions ; for if men will multiply injuries, 
actions must be multiplied too. Every man injured 
ought to have his recompense. But, says my brother 
Powys, ' we cannot judge of this matter, because it is a 
parliamentary thing.' O ! by all means be very tender 



44 REIGN OF QUEEN ANNE. [17 

of that ! But this matter can never come in question 
parliament, and there the plaintiff could receive no co 
pensation for the wrong he has suffered. To allow tl 
action will make public officers more careful to obsei 
the constitution of cities and boroughs, and not to 
partial at all elections, which is, indeed, a great anc 
growing mischief, and tends to the prejudice of t 
peace of the nation. I agree we ought not to enlar 
our jurisdiction ; by so doing, we usurp both on t 
right of the Queen and the people. But this is a mar) 
of property determinable before us, and we are bou 
by our oaths to judge of it. Was ever such a petiti 
heard of in parliament as that a man was hindered 
giving his vote and praying them to give him remed; 
The Parliament undoubtedly would say, ' take yo 
remedy at law.' It is not like the case of determini 
the merits of the return between the candidates. Tl 
privilege of voting does not differ from any other fra 
chise whatsoever. We do not deny to the House i 
Commons their jurisdiction to determine elections ; b 
we must not be frightened, when a matter of proper 
comes before us, by saying, ' it belongs to the -Parli 
ment.' The Parliament cannot judge of this injury, n 
give the plaintiff damages for it. If a returning ofific 
corruptly refuses a vote, and is sued before me, I w 
direct the jury to make him pay well for it. It is a gre 
privilege to choose such persons as are to bind a mai 
life and property by the laws they make. This prii 
lege, belonging to the plaintiff, has been wantonly vi 
lated by the defendant ; and I am of opinion that, i 
stead of arresting the judgment, we ought to allow t 
plaintiff to have execution for the damages which t 
jury has awarded to him." 

Judgment, hbwever, was arrested, and such a trium] 
was this considered to the Tory party, that it was ce: 
Drated by bonfires all over the country. But the w: 
of error was brought into the House of Lords, whe 
the Whigs had the ascendancy. 

At the hearing the Judges were called in, and nine i 
tended. Holt adhered to his opinion, and was su 
ported by Barons Bury and Smith, while Justices Trev 
and Price agreed with the three Puisnies of the Queei 



I704-] JOHN HOLT. 45 

Bench. Lord Somers, now an ex-Chancellor, ably ex- 
pounded the law, and enforced the arguments in favor 
of a reversal of the judgment; while Lord Keeper 
Wright, his successor, not being a peer, was condemned 
to silence. But little weight was given to reasoning or 
eloquence. It was made a mere party question, and, on 
a division, the judgment of the Court of Queen's Bench 
was reversed by a majority of 50 to 16. 

The Whigs were at this time very unpopular, and the 
decision was viewed with no favor by the public. It 
threw the House of Commons into a transport of fury, 
and after a long debate they resolved, by a majority of 
215 to 97, "That the qualification of an elector is not 
cognizable elsewhere than before the Commons of Eng- 
land in parliament assembled : that Ashby, having com- 
menced an action against the Bailiffs of Aylesbury for 
rejecting his vote, is guilty of a breach of the privi- 
leges of this House ; and that whosoever shall in future 
commence such an action, and all attorneys or council- 
lors soliciting or pleading the same, are guilty of a 
breach of the privileges of this House, for which they 
may expect condign punishment." 

The conduct of the Commons upon this occasion can- 
not be too severely reprobated. They wantonly rushed 
into a controversy with the Courts of Law and with 
the Upper House of Parliament. The action brought 
against the returning officer did not in the slightest 
degree interfere with any of their functions or any of 
their privileges ; and the House of Lords, in reversing 
the judgment of the Queen's Bench, had done no more 
than their duty, in soundly expounding the law, and ad- 
ministering justice to a suitor at their bar. The intem- 
perate resolutions passed had a strong tendency to 
bring parliamentary privilege into public odium, and to 
invite dangerous attacks upon it. They were prompted, 
not by any respect for freedom, but by the desire to per- 
petuate the power of a faction. 

The Lords perhaps would have done well if they had 
treated this foolish proceeding with silent contempt ; but 
they appointed a committee, who reported that " the 
Commons thereby assumed a power to control the law 



46 REIGN OF QUEEN ANNE. [17° 

and to pervert justice." A sudden prorogation of Pai 
liament suspended the controversy. 

During the recess, the current of popular opinio 
turned strongly against the House of Commons; am 
various constituencies announced their determination 
upon a dissolution of Parliament, to return Whig repre 
sentatives, who might rescind the obnoxious resolutions 
Encouraged by this spirit, Paty, and several other elect 
ors of Aylesbury, whose votes had been illegally re 
jected like Ashby's, brought fresh actions against th* 
returning officer. 

As soon as Parliament again met, these plaintiffs wen 
all committed to Newgate, " being guilty of commencing 
and prosecuting actions at law for not allowing thei 
votes in the election of members to serve in parliament 
contrary to the declaration, in high contempt of the juris 
diction, and in breach of the known privileges of thii 
House." The captives having sued out writs of habea. 
corpus in the Queen's Bench, the keeper of the jail pro 
duced them, and made a written return, setting out a1 
full length the above warrant, under which they were ar- 
rested and detained. They then moved that they migh1 
be set at liberty, on the ground that their imprisonmeril 
was unlawful, as the warrant showed that they had beer 
unlawfully committed for bringing actions which the 
highest tribunal of the country had decided to be com- 
petent. On account of the high importance of the ques- 
tion, a meeting was called of the twelve Judges, to whom 
it was submitted, and eleven of them properly held that 
no court of law could inquire into the merits of a com- 
mitment of either House of Parliament, forthe same point 
had been solemnly decided in Lord Shaftesbury's case ; 
and it is clear that the contrary doctrine subjects all par- 
liamentary privilege to the control of the Common Law 
Judges, who are supposed to be unacquainted with the 
subject. Holt, C. J., however, refused to acquiesce in 
this opinion, and was for setting the prisoners at lib- 
erty : — 

" The legality of the commitment," said he, " depends 
upon the vote recited in the warrant ; and, for my part, 
I must declare my opinion to be, that the commitment 
is illegal, although sorry to go contrary to an act of the 



I704-] yOBN HOLT. 



47 



House of Commons and the opinion of all the rest of the 
Judges of England. This is not such an imprisonment 
as the freemen of England ought to submit to. The 
prisoners have done that which was legal according to 
the highest tribunal of the country, and which the House 
of Commons alone could not make illegal. Both Houses 
jointly cannot alter the law so as to affect the liberty or 
property of the subject ; for this purpose, the Queen must 
join. The necessity for the concurrence of the three 
branches of the legislature constitutes the excellence of 
our constitution. How can the bringing of an action at 
law for not allowing a vote in the election of members 
of parliament be a breach of privilege ? The returning 
officer of a borough is not a servant of the House of 
Commons, is not acting by their authority, and cannot 
be clothed with any privilege by them. To bring an ac- 
tion against a person who has no privilege cannot be a 
breach of privilege, whether the action is maintainable 
or not. If a peer be charged with any false and scandal- 
ous matter, yet if it be by way of action he cannot have 
scandalum inagnatum. But the plaintiffs here have a good 
cause of action, as we know by the judgment in Ashby v. 
White. The declaration of the House of Commons will 
not make that a breach of privilege which was none be- 
fore. The privileges of the House of Commons are well 
known, and are founded upon the law of the land, and 
are nothing but the law. We all know that the mem- 
bers of the House of Commons have no protection from 
arrest in cases of treason, felony, or breaches of the 
peace ; and if they declare they have privileges which 
they have no legal claim to, the people of England will 
not be estopped by that declaration. This privilege of 
theirs concerns the liberty of the people in a high de- 
gree, by subjecting them to imprisonment for that which 
heretofore has been lawful, and which cannot be made 
unlawful without an act of parliament. As to the House 
of Commons being judges of their own privileges, I say 
they are so when a question of privilege comes before 
them. The Judges have been cautious in giving an an- 
swer in Parliament in matter of privilege of Parliament. 
But when such matter arises before them in Westminster 
Hall, they must determine it. Suppose the actions had 



48 REIGN OF QUEEN ANNE. [1704. 

proceeded, and the privilege had been pleaded as a de- 
fense, we must have given judgment whether it exists or 
not. Why are we not to adjudge on the return to the 
habeas corpus? The matter appears on the record as 
well this way as if it were pleaded to an action. We 
must take notice of the lex parliamenti, which is part of 
the law of the land. As to what my Lord Coke says, 
that the lex parliamenti est a multis ignorata, that is, be- 
cause they will not apply themselves to understand it. 
If the votes of both Houses cannot make law, by parity 
of reason they cannot declare it. The judgment in Ashby 
v. White proves that such an action is no breach of the 
privileges of the Commons. Why did they not commit 
him when he brought the action ? The suffering of him 
to go on with his action, is a proof that this pretense of 
privilege is a new thing. These men have followed his 
steps, and yet they are said to have acted in breach of 
the privileges of the Commons. The Commons may 
commit for a crime ; but not without charging that a 
crim'; has been perpetrated. Lord Shaftesbury was 
committed for a contempt done in the House. Here 
the cause of the commitment being expressed in the 
warrant, we are precluded from presuming that it was 
for something criminal of which the Commons could take 
notice. I am therefore of opinion that the prisoners 
ought to be set at liberty." 

This doctrine seems plausible as well as bold, but when 
examined, will be found contrary both to sound reason 
and to authority ; for if the sufficiency of the cause of 
cornmitment by either House of Parliament can be ex- 
amined on a return to a habeas corpus, then all parlia- 
mentary privilege would be determinable without appeal 
by every court, and by every single judge, in whom the 
power of granting a writ of habeas corpus is vested ; and 
the two Houses of Parliament, deprived of the power of 
commitment for a contempt, which belongs to inferior 
tribunals, could not effectually exercise the functions as- 
signed to them by the constitution. There must be a 
possibility of the abuse of power wherever it is given 
without appeal, and in certain cases it must be so given 
under every form of government. One of these is the 



I704-] JOHN HOLT. 



49 



power of a supreme legislature, or any branch of it, to 
judge of its own privileges. 

According to the opinion of the eleven Judges, Paty 
and the other prisoners were remanded on the ground 
that "the cause of their commitment was not within the 
jurisdiction of the Court of Queen's Bench.'" 

Encouraged, however, by the opinion of Holt, and 
anticipating a favorable consideration from the rival 
branch of the legislature, Paty, and the other Aylesbury 
men, when recommitted to Newgate, resorted to the 
attempt of bringing a writ of error to the House of 
Lords on the decision of the Court of Queen's Bench. 
No such writ of error had ever been before brought, and 
the proceeding involved the most serious consequences. 
Sir Nathan Wright, who was then Lord Keeper of the 
Great Seal, summoned a meeting of the twelve Judges 
to advise him whether ex debito justities the writ should 
issue ? 

Although there was no precedent for such a proceed- 
ing. Holt eagerly supported it, and, without giving any 
decided opinion that the judgment of the Queen's 
Bench could thus be reviewed, he said that "at all 
events the writ ought to issue, and that the House of 
Lords would decide whether they had jurisdiction or 
not." In this opinion he at last induced all the Ju'dges 
except one to concur. 

The Commons were in a fury. They immediately 
made out warrants of commitment against the counsel 
in support of the application, two of whom were lodged 
in Newgate. The third made his escape from the Ser- 
geant-at-arms by letting himself down from a high win- 
dow in the Temple with the assistance of a rope and his 
bed-clothes. Some violent Tory members even in- 
timated a determination to move the commitment of 

' 2 Lord Raym. II l6. This decision has been acquiesced in ever since. 
Recently, some Judges have held out a threat that if the cause of commit- 
ment expressed in the warrant appears to them not to amount properly to a 
breach of parliamentary privilege they would discharge the prisoner ; but 
such an attempt at usurpation is effectually guarded against by the practice 
which I had the honor to introduce in the case of the Sheriffs of Middlesex, 
arising out of the famous case of Stockdale v. Hansard, of returning to the 
habeas corpus xa general words a commitment for breach of privilege, — which 
is allowed, on all hands, entirely to oust the jurisdiction of the Common 
LaM' Courts. 

Ill —\ 



50 REIGN OF QUEEN ANNE. [1704. 

Holt the Chief Justice himself, whom they considered 
the mortal enemy of their privileges. Nay, the follow- 
ing narrative is actually to be found in various books of 
anecdotes, it having been copied, without inquiry, from 
one into another ; — 

*" The Sergeant-at-arms of the Commons presented 
himself before Chief Justice Holt sitting on his tribunal, 
and summoned him to appear at the bar of the House 
to purge himself of his share of the contempt. That 
resolute defender of the laws said, with a voice of au- 
thority, ' Begone !' Soon after came the Speaker in his 
robes and full-bottom wig, attended by many high priv- 
ilege members, and said, ' Sir John Holt, Knight, Chief 
Justice of her Majesty's Court of Queen's Bench, in the 
name of the Commons of England, and by their author- 
ity, I summon you forthwith to appear at the bar of the 
House to answer the charge there to be brought against 
you for divers contempts by you committed in deroga- 
tion of their ancient and undoubted privileges.' His 
Lordship calmly replied to him in these remarkable 
words : ' Go back to your chair, Mr. Speaker, within 
these iive minutes, or you may depend upon it I will lay 
you by the heels in Newgate. You speak of your au- 
thority, but I tell you that I sit here as an interpreter of 
the laws and a distributor of justice, and if the whole 
House of Commons were in your belly I would not stir 
one foot.' The Speaker, quailing under this rebuke, 
quietly retired with his high-privilege body-guard ; and 
the Commons, terrified to contend longer with such an 
antagonist, let the matter drop." 

But an inspection of the Journals proves that no such 
proceedings ever took place, and shows what the real 
catastrophe was. The two Houses, after a series of 
hostile resolutions and counter-resolutions, seemed ready 
to come to open war, the Commons setting writs of 
habeas corpus at defiance, and the Lords seeming deter- 
mined to storm " Little Ease," in which a counsel was 
imprisoned for acting in obedience to their authority. 
As a preliminary step, they presented an address to the 
Queen, praying her Majesty to issue the writ of error to 
reverse the' judgment of the Queen's Bench. The 
Queen returned for answer, '' that she saw an absolute 



t7os] yOHN HOLT. 



SI 



necessity for putting an immediate end to the session 
of Parliament." 

A dissolution almost immediately followed, and such 
was the reaction that the new elections turned out 
greatly in favor of the Whigs. In consequence, the Ad- 
ministration was remodeled, and. Lord Keeper Wright 
being dismissed, the great seal was again offered to Sit 
John Holt. He was now so popular, and so much 
respected by all parties, that his accession to a political 
office would have strengthened the Whig Government ; 
and Lord Godolphin, and the Duchess of Marlborough, 
in the zenith of her sway, pressed him to accept it on 
any terms he might demand ; but he said he was now 
more unfit for it than ever, as years and infirmities were 
coming upon him, and it was a day too late for him to 
be entering on a new career. Sarah thereupon gave the 
great seal to young Mr. Cowper,. of whose youthful 
beauty she was supposed to be innocently enamored, 
and Holt was quietly permitted to end his days as Chief 
Justice." 

When the new Parliament met, a large majority of the 
members were found to disapprove the proceedings of 
the last House of Commons in the Aylesbury Case ; and 
the plaintiffs in the additional actions, having been dis- 
charged out of custody at the termination of the session, 
were allowed to obtain verdicts and execution against 
the returning officer without further disturbance. The 
abuse of privilege by the Commons thus met with its 
proper corrective. 

I cannot altogether defend Holt in this controversy. 
His judgment xvl Ashby ^. White vfz.s undoubtedly just. 
In the subsequent proceedings, although his courage is 
to be admired, it can hardly be denied that he was car- 
ried too far by his Whig zeal against a Tory House of 
Commons. All that he did, however, was vigorously de- 
fended by that great constitutional authority. Lord 
Somers. For above a century the view of privilege 
taken by the eleven Judges who differed from him was 
implicitly followed, but there has recently" been a con- 

' LivBS of the Chancellors, iv. ch, cxiv. ; 6 Pari. Hist. 225 ; 14 St. Tr.- 
695. 
' Lord EUenborough was the first to countenance the notion of exam- 



52 



REIGN OF QUEEN ANNE. 



[1705 



trary tendency, which became rather rampant till 
checked by the interference of the legislature' and the 
superintendence of a court of error.' 

ining the commitments of the Houses of Parliament by putting an extreme 
case : — " If a commitment appeared to be for a contempt of the House of 
Commons generally, I would neither in the case of that court nor of any 
other of the superior courts inquire further ; but if it did not profess to 
commit for a contempt but for some other matter appearing on the return 
which could by no reasonable intendment be considered as a contempt of 
the court committing, but a ground of commitment palpably and evidently 
arbitrary, unjust, and contrary to every principle of positive law and natural 
justice, we must look at it and act upon it as justice may require, from 
whatever court it may profess to have proceeded," Burdett v. Abbott, 14 
East, 1501. 
' 3 Vict. c. ix. ' Howard v. Gossett 




CHAPTER XXV. 

CONCLUSION OF THE LIFE OF LORD CHIEF JUSTICE 

HOLT. 

HOLT survived this controversy nearly five years, 
and continued to discharge his judicial duties 
with undiminished ability and credit ; but no 
other case of great permanent interest arose before him, 
and he was not in anyway mixed up with the important 
political events which render the latter portion of the 
reign of Queen Anne so interesting. He adhered 
steadily to the Whig party, without incurring the slight- 
est suspicion of partiality while presiding on the bench, 
and he steered clear of all the intrigues by which they 
rose or fell. From his manly good sense, he must have 
sadly lamented their imprudent impeachment of Sache- 
verell ; but he was snatched away before their ruin was 
consummated by this irreparable blunder. Having been 
summoned to attend the trial with the other Judges in 
the House of Lords, when it was about to commence 
he was struck with a mortal disorder. The last day that 
he ever sat in court was the 9th of February, 1710, and 
at three o'clock in the afternoon of the 5th day of 
March following he expired, at his house in Bedford 
Row,' in the sixty-eighth year of his age. 

Notwithstanding the factious excitement which then 
prevailed, the death of this great magistrate produced 
a deep sensation in the public mind, and the regret of 
the Tories was embittered by seeing his office given as a 
reward for the violence with which Sergeant Parker had 
assailed Dr. Sacheverell and high-church principles; 
Both parties united in showing respect for the memory 
of the departed Chief Justice. The interment was to 
take place at Redgrave, in Suffolk ; and not only all the 
' Then called Bedford Walk. See 3 Lord Raym. 1389. 



54 REIGN OF QUEEN ANNE. [i?!''- 

heads of the law, with the barristers and students, but 
the principal nobility and gentry in London, of all shades 
of political opinion, attended the funeral procession 
several miles from the metropolis. The admirers of 
Sacheverell asserted that if Lord Chief Justice Holt's 
life had been spared, and he had attended the pending 
trial, he who had boldly withstood either House of Par- 
liament would have lifted up his voice against this in- 
iquitous prosecution, and declared that the champion of 
the Church had done nothing worthy of death or of 
bonds ; while the Whigs retorted, that a solemn pro- 
ceeding instituted to vindicate the principles of the 
Revolution would have been warmly countenanced by 
him who had resisted the tyranhyof James IL,who had 
been a distinguished member of the Convention Parlia- 
ment, whose arguments had mainly contributed to the 
vote that the throne was vacant, and who, during his long 
career, had never swerved from the true principles of 
civil and religious liberty." 

After reaching Highgate, the hearse was accompanied 
only by the brother of the deceased and a few private 
friends till it approached the place of its destination, 
when it was met by an immense assemblage from the 
surrounding country. The manor of Redgrave is famous 
in our judicial annals. It had belonged to Lord Keeper 
Sir Nicholas Bacon ; and here he had entertained Queen 
Elizabeth — when in answer to her observation that " his 
house was rather too small for him," he replied, " Your 
Majesty has made me too great for my house." From 
the family of the Bacons it had been purchased by Chief 
Justice Holt, and here he spent his vacations as a pri- 
vate gentleman, mixing familiarly with all ranks, and 
particularly with the more humble. All the inhabitants 
of this and the adjoining parishes, as if by one impulse, 
were now congregated to do honor to him whose face 
they were to see no more, but whose virtues they were 
to talk of to their children's children. They cared little 
about his political conduct, but they had heard, and they 

' This seems to have been an anticipation of the contest between Wliigs 
and Tories three years later, when the tragedy of Cato was brought upon 
the stage. " The Whigs applauded every line in which Liberty was men- 
tioned, as a satire on the Tories ; and the Tories echoed every clap to show 
that the satire was unfelt" ' "' . 



»7io-] JOHN HOLT. 



55 



believed, that he was the greatest Judge that had ap- 
peared on earth since the time of Daniel, and they 
knew that he was condescending, kind-hearted, and 
•charitable. We are told that as the body was lowered 
into the grave prepared for it, in the chancel of the 
church at Redgrave, not a dry eye was to be seen, and 
the rustic lamentations there uttered eloquently spoke 
his praise. 

There is now to be admired a magnificent monument 
of white marble, which his brother erected over his 
grave at a cost of ;^i,5oo, representing him in his judi- 
cial robes under a canopy of state, seated between em- 
blematical figures of Justice and Mercy, with the fol- 
lowing inscription : — 

" M. s. 

Johannis Holt Equitis Aur. 

Totius Anglise in banco regio 

Per xxi. annos continuos 

Capitalis Justiciarii 

Gulielmo Regi, Annee Reginae 

Consiliarii perpetui, 

Libertatis ac legum Anglicarum 

Assertoris, Vindicis, Custodis 

Vigilis, acris, et intrepidi. 

Rolandus frater unicus et haeres 

Optima de se merito 

Posuit." 

This praise is certainly well deserved. I should have 
been glad if the epitaph could have truly added that he 
was an elegant scholar, an enlightened philosopher, a 
splendid orator, or a distinguished writer. Agreeing 
with Speaker Onslow, that " he was not of very enlarged 
notions," I would not add, " the better judge, whose busi- 
ness it is to keep strictly to the plain and known rules 
of law." According to a pithy expression which I have 
several times heard from the late Daniel O'Connell, " a 
judge must be a downright tradesman," meaning " the 
first and indispensable qualification of a judge is that he 
should thoroughly understand his profession;" and, if he 
is at all induced to neglect his judicial duties by the al- 
lurements of literature and science, or the dangerous am- 
bition of universality, it would be much better that he 
had taste for nothing more refined than the Year-Books. 
But there is no absolute incompatibility between the 



56 REIGN OF QUEEN ANNE. 

profoundest knowledge of jurisprudence and any degree 
of culture and accomplishment. We can conceive that 
Holt, like Somers, might have been President of the 
Royal Society, and a member of the Kit-Cat Club. But 
he seems to have been wholly unacquainted with the 
philosphers and wits who illustrated the reigns of King 
William and Queen Anne ; and Steele, who celebrates 
him in the Tatler, evidently speaks of Verus only as 
an idol whom he had seen and worshiped from a dis- 
tance. We are left to conjecture as to his habits ; but 
he must have had benchers and sergeants-at-law for his 
companions, and his talk must have been of " contingent 
»emainders." Yet he is the first man for a " mere law- 
yer," to be found in our annals. Within his own sphere 
he shone with unrivaled brightness. Perhaps he was 
carried too far by his admiration of the common law of 
England, as when he declared that an appeal of murder 
sued by the heir of the deceased, to be tried by battle, 
and excluding the Crown's power of pardon, instead of 
being an odious prosecution and a remnant of barbarism, 
was " a noble remedy, and a badge of the rights and priv- 
ileges of an Englishman.'" His head, likewise, seems 
to have been a little turned by the applause he received 
for his independence, insomuch that he told Mr. Raymond 
(afterwards Lord Raymond, and his successor) that if the 
House of Lords had determined against him in a case of 
Prohibition which was clearly within their jurisdiction, he 
would not have held himself bound by their judgment ;' 
but, generally speaking, he is to be considered a con- 
summate^ jurist ; above all prejudice ; misled by no pre- 
dilection ; seeing what the law ought to be, as well as 
what it was supposed to be ; giving precedent its just 
weight, and no more ; able to adapt established princi- 
ples to the new exigencies of social life ; and making us 
prefer judge-made law to the crude enactments of the 
legislature. 

He had the merit of effectually repealing the acts 
against witchcraft, although they nominally continued on 
the statute book to a succeeding reign. Eleven poor 
creatures were successively tried before him for this sup- 

' Sarah Stout's Case, i Lord Raym. 557 ; 12 Mod 373 375. 
• I Lord Raym. 545, 



yOHN HOLT. 57 

posed crime, and the prosecutions were supported by the 
accustomed evidence of long fasting, vomiting pins and 
tenpenny nails, secret teats sucked by imps, devil's 
marks, and cures by the sign of the cross or drawing 
blood from the sorceress — which had misled Sir Matthew 
Hale : but, by Holt's good sense and tact, in every in- 
stance the imposture was detected to the satisfaction of 
the jury, and there was an acquittal. One of the strong- 
est prima facie cases made out before him was said to 
have been that against the woman to whom, many years 
before, he himself had pretended to be a wizard, and to 
whom he had given the cabalistic charm which was ad- 
duced as the chief proof of her guilt.' At last the Chief 
Justice effectually accomplished his object by directing 
that a prosecutor who pretended that he had been be- 
witched should himself be indicted as an impostor and a 
cheat. This fellow had sworn that a spell cast upon him 
had taken away from him the power of swallowing, and 
that he had fasted for ten weeks ; but the manner in 
which he had secretly received nourishment was clearly 
proved. He, nevertheless, made a stout defense, and 
numerous witnesses deposed to his expectoration of pins 
and his abhorrence of victuals, all which they ascribed to 
the malignant influence of the witch. The Judge, hav- 
ing extracted from a pretended believer in him the an- 
swer that " all the devils in hell could not have helped 
him to fast so long," and having proved, by cross-exam- 
ining another witness, that he had a large stock of pins 
in his pocket, from which those supposed to be vomited 
were taken, summed up with great acuteness, and left it 
to the ju^ry to say, not whether the defendant was be- 
witched, but whether he was non compos mentis, or was 
fully aware of the knavery he was committing, and know- 
ingly wished to impose on mankind? The jury found a 
verdict of guilty, and, the impostor standing in the pil- 
lory to the satisfaction of the whole country, no female 
was ever after in danger of being hanged or burned in 
England for being old, wrinkled, and paralytic.' 

Holt's conduct on this occasion will appear the more 
meritorious if we consider that he ran great risk of being 
denounced as an athiest ; and that, to avoid this peril, 
' Ante pp. 4, 5. ' 14 St. Tr. 639-695, 



58 REIGN OF QUEEN ANNE. 

preceding Judges, who were not believers in witchcraft, 
had pandered to the prejudices of the vulgar. Says 
Roger North, " If a Judge is so clear and open as to de- 
clare against that impious vulgar opinion that the Devil 
himself has power to torment and kill innocent children, 
or that he is pleased to divert himself with the good peo- 
ple's cheese, butter, pigs, and geese, and the like errors 
of the ignorant and foolish rabble, the countrymen cry, 
' This judge hath no religion, for he doth not believe 
witches;' and so, to show they have some, hang the poor 
wretches." ' 

Holt seems to have had a high reputation among his 
contemporaries for detecting false pretenses of all sorts, 
and exposing those who put on an aspect of extraordi- 
nary sanctity. There existed in his time a " society for 
the suppression of vice," composed of men who sought 
to cover their own bad characters and pernicious habits 
by affecting to put the law in force against others less 
culpable than themselves. Said Steele, describing the 
Chief Justice as Verus, " fie never searched after vice, 
nor spared it when it came before him ; at the same time, 
he could see through the hypocrisy and disguise of those 
who have no pretense to virtue themselves but by their 
severity to the vicious. In his time there was a nest of 
pretenders to justice who happened to be employed to 
put things in a method for being examined before him. 
These animals were to Verus as monkeys are to men : 
so like, that you can hardly disown them ; but so base, 
that you are ashamed of their fraternity. It grew a 
phrase, ' Who would do justice on the justices?' I have 
seen an old trial where he sat judge on two of them ; one 
was called Trick-track, the other Tear-shift ; one was a 
learned judge of sharpers, the other the quickest of all 
men at finding out a wench. Trick-track never spared a 
pick-pocket, but was a companion to cheats. Tear-shift 
would make compliments to wenches of quality, but cer- 
tainly commit poor ones. These patriots infested the 
days of Verus, while they alternately committed and 
released each other's prisoners. But Verus regarded 
them as criminals, and always looked upon men as they 
' Life of Guilford, i. 151. 



yOHN HOLT. 



59 



stood in the eye of justice, without respecting whether 
they sat on the bench or stood at the bar." ' 

To a band of fanatics called the " Prophets " Holt 
had a particular antipathy. One of these, named Lacy, 
being beaten in a trial before him, complained of in- 
justice. Calaray, the famous Presbyterian divine, re- 
lates that, he having repeated these complaints to F At, 
" My Lord by this time was moved ; and, setting his 
hands to his side, cried out, ' ajt honest cause did he -all 
it? I tell you, sir, and you have full liberty to tell i im, 
or any one else you think fit, from me, that it was one 
of the foulest causes I ever had the hearing of, and hat 
none but an arrant knave would have had the con :ern 
in it that Lacy had ; for it was a plain design, in coi cert 
with a notorious jilt, to have cheated the right heir of a 
good estate upon his supplying her with money. If 
one that could do this may be allowed to set up for a 
prophet, the world is come to a fine pass.' "" 

Holt having, some time after, committed another of 
this brotherhood, called John Atkins, to take his t; i.J 
for seditious language, the same Lacy called at ,.1 t 
Chief Justice's house in Bedford Row, and desired to ; e 
him. Servant : " My Lord is unwell to-day, and cauii <t 
see company." Lacy (in a very solemn tone) : " Ac- 
quaint your master that I must see him, for I bring a 
message to him from the Lord God." The Chief Jus- 
tice, having ordered Lacy in and demanded his business 
was thus addressed : " I come to you a prophet from 
the Lord God, who has sent me to thee, and would have 
thee grant a 7iolle prosequi for John Atkins, his servant, 
whom thou hast sent to prison." Holt, C. J. : " Thou 
art a false prophet, and a lying knave. If the Lord God 
had sent thee, it would have been to the Attorney Gen- 
eral, for he knows that it belongeth not to the Chief 
Justice to grant a nolle prosequi ; but I, as Chief Justice, 
can grant a warrant to commit thee to bear him com- 

' Tatler, No. xiv. There must here be an allusion to some well-lnown 
" trading justices," belonging to a class who then and for many years after 
infested the metropolis, till stipendiary magistrates were at length establish»d 
at Bow Street : but I hare in vain endeavored to trace in " Magazines" and 
" Trials" the individuals whom Holt is here celebrated for having ejiposcd 
and punished. 

' Rutt's Life of Calamy, ii. m, lia. 



6o REIGN OF QUEEN ANNE. 

pany." This was immediately done, and both prophets 
were convicted and punished. 

It is observable that, even under Holt, criminal trials 
were not always conducted with the regularity and for- 
bearance which we now admire. For the purpose of ob- 
taining a conviction when he believed the charge to be 
well-founded, he was not very scrupulous as to the 
means he employed. To the end of his life he per- 
severed in what we call " the French system " of inter- 
rogating the prisoner during the trial, for the purpose of 
obtaining a fatal admission from him, or involving him 
in a contradiction. Thus in the case, which made a 
noise all over Europe, of Haagen Swendsen, indicted 
capitally for forcibly carrying off an heiress and marry- 
ing her, the prisoner having asserted that, before he car- 
ried her off, she had squeezed his hand and kissed him, 
the Chief Justice asked " If she was consenting, why 
then did you force her to the tavern and marry her by a 
parson you had provided for that purpose ?" The pris- 
oner answered, " She married me with as much freedom 
as there could be in woman." But he was convicted 
and executed." 

Contrary to the doctrine which we hold, that soldiers 
are armed citizens, and may lawfully, like other citizens, 
by the command of a magistrate, and on an occasion of 
extremity even without the command of a magistrate, 
interpose to prevent the commission of a crime and to 
preserve or restore public tranquillity. Holt is said to 
have held that the military could only be lawfully em- 
ployed against a foreign enemy or in quelling open re- 
bellion. But this opinion of his is not to be found laid 
down on any trial, or recorded in any book of authority, 
and rests on the following gossiping story : " A party 
of the guards was ordered from Whitehall to put down 
a dangerous riot which had arisen in Holborn, from the 
practice of kidnapping, then carried to a great extent ; 
and at the same time an officer was dispatched to inform 
the Chief Justice of what was doing, and to desire that 
he would send some of his people to attend and coun- 
tenance the soldiers. ' Suppose, sir,' said Holt, ' let me 
suppose the populace should not disperse on your ap- 

' 14 St. Tr. 559-638. 



JOHN HOLT. 61 

pearance, or at your command ?' ' Our orders are then 
to fire upon them.' 'Then mark, sir, what I say; if 
there should be a man killed in consequence of such 
orders, and you are tried before me for the murder, I 
will take care that you and every soldier in your party 
shall be hanged. Return to those who sent you, and 
tell them that no officer of mine shall accompany sold- 
iers ; the laws of this kingdom are not to be executed 
by the sword. This affair belongs to the civil power, 
and soldiers have nothing to do here.' Then, ordering 
his tipstaves and some constables to accompany him, he 
hastened to the scene of tumult, and the populace, on 
his assurance that justice should be done on the objects of 
their indignation, dispersed in a peaceable manner.'" 
Holt certainly did, in his proper person, disperse a 
riotous assembly in Holborn, with the assistance 
of a band of constables but the dialogue between 
him and the officer of the guards I consider apoc- 
ryphal. From the earliest times to the beginning 
of the i8th century, the Chief Justice of the King's 
Bench had been in the habit of taking an active part 
in putting down disturbances." In the Plantagenet 
reigns, when there were no standing armies or regular 
troops to be employed for this purpose, I find that he 
was not unfrequently sent into distant counties with a 
commission of array, and that he commanded in the field 
the forces so raised. Holt may very properly have ex- 
pressed jealousy of the wanton interference of the mili- 
tary, but there is an extreme improbability that he 
should in such terms have condemned the employment, 
for the prevention of crime, of a portion of the posse 
ioviitatus wearing red coats instead of blue, and armed 
with muskets instead of batons. 

Holt continued, like preceding Chief Justices, to act 
out of court as a magistrate, in taking preliminary ex- 
aminations against parties accused, and committing them 
for trial. Recognizances were likewise entered into be- 
fore him. In the Journal of the second Earl of Claren- 

' Examiner, vol. iv. No. 14 ; Notes to Tatler, ed. 1806, vol. i. p. 147. 

• It is likewise a curious fact that the Judges of the King's Bench acted 
as police magistrates ; taking preliminary examinations of witnesses, and 
commi'ting criminals for trial. 



62 REIGN OF QUEEN ANNE. 

don we find the following entry:—" 15th August, 1690. 
About six in the evening, my Lord Lucas went with me 
to my Lord Chief Justice Holt's. My brother came 
just from Tunbridge, and went with me ; my wife stayed 
in the coach. My Lord Chief Justice presently took my 
recognizance to appear in the King's Bench the first day 
of the next term ; and in the mean time to give my 
word and honor not to disturb the Government, and to 
keep the peace. I said I agreed to all, but to the last 
clause ; which seemed a very odd one, and I could say 
nothing to it. At Lord Lucas's desire, I spoke to my 
Lord Chief Justice about Lord Forbes's bail; who could 
get none but gentlemen from Ireland. The Lord Chief 
Justice was very snappish." ' 

While Chief Justice, he had to fight a battle with the 
Crown, as well as with the Lords and with the Com- 
mons. The great sinecure office of Chief Clerk of the 
Court of King's Bench, now compensated by a pension 
of ;^9,000 a year, falling vacant. Sir John Holt granted 
it to his brother Roland, and the question arose whether 
the patronage of it belonged to the Chief Justice or to 
the King? This came on to be decided by a trial at bar 
before the three Puisne Judges and a jury. A chair was 
placed on the floor of the Court for Lord Chief Justice 
Holt, on which he sat uncovered near his counsel. It was 
proved that the Chief Justices of the King's Bench had 
appointed to the office from the earliest times, till a 
patent was granted irregularly by Charles II. to his 
natural son the Duke of Grafton ; and there was a ver- 
dict against the Crown, which was confirmed, on appeal, 
by the House of Lords." 

Holt appears in the catalogue of our judicial authors, 
but does not add to its faint lustre. In the year 1708, he 
edited a collection of Crown cases from the MS. of 
Chief Justice Kelynge, adding three judgments of hib 
own, all of which are upon the law of murder and man- 
slaughter.' His notice of them in his preface rather 
shows that he was an instance of a great English lawyer 
' being utterly unacquainted with English composition : 

' Vol. il. pp. 328, 329. 

' Shower's Parliamentary Cases, m ; Skinner, 354. 

' Rex V. Lisle, Rex v. Flumer, Rex t. Mawgridge. 



JOHN HOLT. 63 

" The three modern cases," says he, "are conceived to be 
of some use, therefore are thought fit to be published ; 
and if they shall be found to be of any benefit, it's what 
is desired by the publisher thereof." 

I am much grieved that we know so little of Holt in 
private life. He had no chronicler like Roger North, he 
has left no diary of his own, and there is not even a 
scrap of a letter of his extant. We must particularly 
regret that we have so few of his sayings handed down 
to us, for, judging from his reprimand of the " false 
prophet," they must have been very racy, if sometimes 
a little irreverent. 

He no doubt derived much satisfaction from the able 
discharge of his official duties, and the high credit which 
he thereby acquired ; but he had no domestic bliss. His 
wife, Anne, the daughter of Sir John Cropley, a lady of 
strict virtue, was a shrew, and they lived together on 
the worst possible terms. She felt into ill health, and 
ne was in high hopes of getting rid of her. To plague 
her husband, she insisted on consulting a physician with 
whom he had a personal quarrel, and who, for this reason, 
is said to have taken peculiar pains in curing her. She 
certainly survived him several years; and Dr. Arbuthnot, 
afterwards writing to Swift an account of his attendance 
on Gay the poet, said, " I took the same pleasure in 
saving him as Radcliffe did in saving my Lord Chief 
Justice Holt's wife, whom he attended out of spite to 
her husband, who wished her dead." It is to be feared 
that although he thought he could define by law the 
privileges of the Lords and of the Commons, he was 
obliged to confess that his wife was the sole judge of her 
own privileges, and that when she pronounced him in con- 
tempt he was entirely without remedy. He established 
against the Crown his right to appoint the chief clerk of 
his court, but the nomination of footmen in his family, 
as well as of housemaids, rested entirely with his wife.' 
Nevertheless, he left her by his will a jointure of £^00 
a year. 

' Some maliciously accounted for his unwearied devotion to business by 
his dislike of the society of Lady Holt, — in the same manner, as in the time 
of Judge Gilbert, who wrote so many excellent law books shut up in his 
chambers in Sergeants' Inn, it was said that the public was indebted for 
them to his scolding wife. 



64 REIGN OF QUEEN ANNE. [iT'o- 

She brought him no children, and the whole of his 
great possessions went to his brother Roland, a descend- 
ant of whom is still Lord of Redgrave.' 

I shall conclude this memoir in the words of the writer 
who first collected materials for the Life of Holt, and 
who thus gives him characteristic praise : " His Lordship 
was always remarkable in nobly asserting, and as vigor- 
ously supporting, the rights and liberties of the subject, 
to which he paid the greatest regard upon all occasions, 
and never suffered the least reflection tending to depre- 
ciate them to pass uncensured." ' 

' George St. Vincent Wilson, Esq., great-great-grandson of Roland. 
• Biographja Brit. " Sir John Holt." 




CHAPTER XXVI. 

CHIEF JUSTICES FROM LORD HOLT TILL THE APPOINT- 
MENT OF SIR DUDLEY RYDER. 

ON the death of Chief Justice Holt, Lord Godolphin, 
the Prime Minister, resolved to give his place to 
Sergeant Parker, who, as one of the managers for 
the House of Commons in the impeachment of Sacheve- 
rell, had greatly distinguished himself. The Attorney 
and Solicitor General, Sir James Montagu and Sir Robert 
Eyre, like all sensible men, disapproving of the prosecu- 
tion, had been deficient in zeal when they assailed the 
libeler of VOLPONE ; and neither of them had such polit- 
ical importance as to enable them to vindicate a claim 
to the promotion, — which would then have been pecu- 
liarly seasonable, as the Whigs had fallen into deep dis- 
grace, and a change of administration was evidently at 
hand. The proposed appointment was very disagreeable 
to the Queen. Having attended Sacheverell's trial, she 
had been much shocked by the freedom with which Ser- 
geant Parker had ridiculed the divine right of kings and 
other dogmas of the High Church party, and still more 
by the acrimony with which he had inveighed against 
" the Doctor' himself, whom she loved in her heart for 
his principles, secular as well as religious, and above all 
for his personal abuse of those ministers with whom she 
was now so much disgusted. But being warned by Har- 
ley, who already, through the Agency of Mrs. Masham, 
was her confidential adviser, that the time for a rupture 
with the Whigs was not yet quite arrived, she gave her 
reluctant consent. 

Accordingly, on tne 13th of March, 1710, SiR Thomas 
Parker was installed as Chief Justice of the Court of 
King's Bench, and continued to fill the office for the four 
remaining years of Queen Anne and the first four years 
of the succeeding reign. But tracing his eventful career 
111—5. 



66 REIGN OF QUEEN ANNE. [1710— 

is a by-gone pleasure, for he afterwards held the great 
seal of England — till he was deprived of it on being con- 
victed of judicial corruption. I must, therefore, refer 
those who would know the particulars of his extraordi- 
nary rise, and of his lamentable fall, to the " Life of Lord 
Chancellor Macclesfield," which I have already given to 
the world.' 

However, I cannot refrain from expressing my regret 
that some connections of his family, ashamed of his hav- 
ing been the son of a village lawyer, — of his having been 
at Newport school, along with Tom Withers the shoe- 
maker, — of his having himself practiced as an attorney, 
and of his having raised himself by the gigantic vigor of 
intellect, would fain represent him as having enjoyed alt 
the advantages of high birth and regular education, — as 
having been destined to the bar from his childhood, and 
as having reached his high honors in the usual routine 
of professional progress. In overlooking well-established 
facts respecting him, they surely lessen the merit which 
belongs to him while he was ascending to eminence, — 
and they deprive him of the mitigation of early penury 
for the disreputable practices into which he was led by 
his excessive love of riches. If I were to re-write his 
life, I must substantially adhere to my former narrative, 
— which if he could peruse he would not repudiate ; for 
he never pretended to an aristocratical origin, and he 
was delighted, when Chief Justice of England, to spend 
an evening with an old school-fellow who had thrown 
aside a leathern apron, and whose hands v/ere hard with 
resin." 

When Parker had gained the favor of George I., and, 
by intrigues with the Hanoverians who accompanied 
that sovereign to England, had subverted the influence 
of Lord Cowper, another Chief Justice of the King's 
Bench was to be provided. The new Chancellor was de- 
termined that he would not commit the blunder of rais- 
ing up to high office a formidable rival, by whom he 

' Lives of Chancellors, vol. iv. ch. cxxl. 

' In a new edition of my Lives of the Chancellors I have pointed out his 
pedigree from the Parkers of Park Hall, and I have shown that he certainly 
had been entered of Trinity College, Cambridge ; but the evidence is 
strengthened as to the low condition cf his father, and the obstacles he had 
to siirmount in the early part of his career. 



1718-1 TH03[AS PARKER. 67 

might in turn be superseded. He therefore fixed upon 
a dull lawyer, of decent character, to whom nothing posi- 
tive could be objected, and who, — unfit to be placed in 
the House of Lords, — without aspiring to the " marble 
chair," must ever remain his humble supporter. 

I am afraid that the taste of my readers may be a lit- 
tle corrupted by the exciting atrocities of the Chief Jis- 
tices of the seventeenth century, and that some dismay 
may be felt upon the introduction of a man who is un 
redeemed from insipidity by the commission of a single 
great crime. I own that such company is tiresome, and 
we shall speedily take leave of him. But I must present 
a little sketch of this worthy person, who for seven years 
was Chief Justice of England. 

Sir John Pratt's great distinction is, that he was 
the father of Lord Camden. He was descended, how- 
ever, from a respectable family long settled at Careswell 
Priory, near Collumpton, in the county of Devon. He 
studied at Oxford, and was elected a fellow of Wadham 
College. Although an eldest son, it was necessary that he 
should work for his bread, as the estate which had remained 
many generations in his name had been alienated by his 
spendthrift grandfather. He was, therefore, called to the 
bar in the end of the reign of Charles H., and, by plodding 
diligence, got into respectable business. In the year 1700 
he took the degree of Sergeant-at-law, and he was twice 
returned to the House of Commons as member of Mid- 
hurst. But he had no talents for public speaking, and in 
the Parliamentary Debates his name is not once men- 
tioned. He was a good Whig under the patronage of 
Lord Cowper, who, while disposed to promote him, found 
hi'm quite unfit for the situation of Attorney or Solicitor 
General. His practice in the Court of Common Pleas, 
however, was considerable, for he was well versed in his 
profession ; and, although reckoned heavy eleswhere, he 
there went by the name of the " lively Sergeant." 

Having remained true to his party during the four 
years of Tory rule, — on the accession of George I. the 
desire to do something for his advancement was 
strengthened. Lord Cowper, being restored to the 
office of Chancellor, in his letter to George L respecting 



68 REIGN OF GEORGE I. [1718. 

the state of the bench in Westminster Hall, objected to 
the continuance of the two brothers Sir Littleton Powys 
and Sir Thomas Powys as Judges of the King's Bench, 
particularly Sir Thomas, whom he denounces as " zeal- 
ously instrumental in the measures which ruined James 
II., and as still devoted to the Pretender," and added, 
" If either of these be removed, I humbly recommend 
Sergeant Pratt, whom the Chief Justice Parker, and I 
believe every one that knows him, will approve." Ac- 
cordingly Sir Thomas Powys was superseded, and Ser- 
geant Pratt, being knighted, was made a Puisne Judge 
of the King's Bench in his stead. 

He sat four years there as a colleague of Parker, who, 
having during this time had full proof of his docility, 
inoffensiveness, and moderate sufficiency for the duties 
of the office, when about to become Lord Chancellor re- 
solved to appoint him his successor. As a step to this 
distinction, in the short interval between the resignation 
of the great seal by Lord Cowper and the delivery of it 
to Lord Macclesfield, it was put into commission, and 
Pratt was made a Lord Commissioner. 

He took his seat as Lord Chief Justice of the King's 
Bench on the 15th of May, 1718. 

His panegyrists (for a Chief Justice is sure to have 
panegyrists) lauded him — not as a great real property 
lawyer, or a great commercial lawyer, or as a great Crown 
lawyer, but as "A GREAT SESSIONS LAWYER;" and in 
looking through Strangers Reports, Lord Raymond's Re- 
ports, Burrow's Reports, and Modern Reports, in which 
his decisions are recorded, it is curious to observe how 
many of them turn upon questions of poor-rates and 
parochial settlement — then a new field of litigation. 
One, and one only, of these judgments is still interesting, 
from having been married to immortal verse. 

The widow of a foreigner, being left destitute on the 
death of her husband, who had no parochial settlement 
in England, was removed from a parish in London to 
the parish in the country in which she was born ; but 
this parish appealed to the quarter-sessions against the 
order of removal, on the ground that a maiden settle- 
ment is for ever lost by marriage. The Justices at ses- 
sions, being much puzzled, referred the case to the 



I718-J THOMAS PARKER. 69 

Court of King's Bench, and the decision there is thus 
recorded by Sir James Burrow in his Reports : 

" A woman having a settlement 
Married a man with none ; 
The question was, he being dead. 
If what she had, was gone. 

" Quoth Sir John Pratt, the settlement 
Suspended did remain. 
Living the husband ; but him dead, 
It doth revive again." 

(Chorus of Puisne Judges.) 
" Living the husband ; but him dead, 
It doth revive again."' 

This decision seems to have created a great sensation 
in Westminster Hall ; but the glory which it conferred 
on Chief Justice Pratt soon passed away, for, as far as 
the suspension was concerned " living the husband," it 
was reversed by his successor. Chief Justice Ryder, who 
determined, with his puisnies, that the maiden settle- 
ment continues after marriage till a new settlement is 
gained ; and that although the wife cannot be separated 
from the husband by an order of removal, if he, having 
no settlement, has deserted her, she may be sent to her 
parish for relief, even in his lifetime : 

" A woman having a settlement, 
Married a man with none : 
He flies and leaves her destitute ; 
What then is to be done ? 

" Quoth Ryder, the Chief Justice, 
' In spite of SIR John Pratt, 
You'll send her to the parish 
In which she was a brat. 

** Suspension of a settlement 
Is not to be maintained ; 
That which she had by birth subsists 
Until another's gained.' 

{Chorus of Puisne Judges^ 
" That which she had by birth subsists 
Until another's gained."* 

Chief Justice Pratt acquired considerable credit by 
his firm conduct in the famous controversy between Dr. 

' Burr. Sett. Cas. 124 ; Burn's Just., tit. " Settlement." 
» St. John's, Waf^ng, v. St. Botolph's, Bishopgate, Burr. S. C. 367 i a 
BotL 109. 



7 REIGN OF GEORGE I. [17^ 

Bentley and the University of Cambridge. When, on 
the application of this very learned and very litigious 
scholar, the Court of King's Bench had granted an 
attachment against his enemy. Dr. Colbatch, the 
author of Jus Academicum, for a contempt of their 
jurisdiction, Sir Robert Walpole and Lord Maccles- 
field attempted to exercise their influence in his 
favor. " But," says Bishop Monk, " the patronage 
of these great ministers was not calculated to render the 
unfortunate divine any real service. The distinguished 
Judge who presided on the bench entertained a high no- 
tion of the dignity of his court, and the necessity of re- 
dressing all attempts to disparage or question its author- 
ity. He had, also, too just an opinion of the sanctity of 
the judicial character not to be jealous of the interference 
of persons in power with the administration of justice. 
He heard, therefore, the representations of the Cabinet 
Ministers without the least disposition to attend to 
them ; insomuch that the Premier accounted for his in- 
flexibility by observing that ' Pratt had got to the top 
of his preferment, and was therefore refractory and not 
to be governed by them.' " According to our notions, 
we should rather blame the Chief Justice for suffering 
interviews with a party in a pending proceeding, for we 
read with surprise this mitigation of his supposed stern- 
ness : " However, when Dr. Colbatch, by advice of the 
Lord Chancellor, waited on the Chief Justice at his 
house in Ormond Street, he behaved to him with con- 
siderable candor and mildness ; he declared, indeed, that 
he viewed the offense in a serious light, but assured him 
that he would take no advantage of his having privately 
acknowledged himself author of the book." The writer 
of Jus Academicum, for having said, in allusion to the 
Court of King's Bench granting writs of mandamus and 
prohibition against the University of Cambridge, " that 
they who intend to subvert the laws and liberties of any 
nation commonly begin with the privileges and immu- 
nities of the Universities," was sentenced by Chief Jus- 
tice Pratt to be imprisoned, fined ;^so, and bound over 
to his good behavior for a twelvemonth." 
Then followed Bentley's application for a mandamus 

' Monk's Life of Bentley, vol. ii. ch. xvi. p. 185. 



«723-] JOHN PRATT. 



71 



to the University of Cambridge to restore him to his 
academical degrees, of which he had been deprived 
without having been duly summoned or heard. After 
the case had been argued several successive terms, at 
prodigious length. Chief Justice Pratt said, — 

" This is a case of great consequence, not only to the 
gentleman who is deprived, but likewise as it will affect 
all the members of the University. It is the glory and 
happiness of our excellent constitution, that, to prevent 
any injustice, no man is to be concluded by the first 
judgment ; but that, if he apprehends himself to be ag- 
grieved, he has another court to which he can resort "for 
relief: with this view, the law furnishes him with ap- 
peals and with writs of error ; and in this particular 
case, lest the party complaining should be remediless, it 
has become absolutely necessary for this Court to order 
the University to lay before us the state of their pro- 
ceedings against him, so that if they have erred he may 
have right done to him, or if they have acted according 
to the rules of law, their acts may be confirmed. The 
University ought not to consider it any diminution of 
their honor, that their proceedings are examinable in a 
superior court. For my own part I am sure it is a con- 
, sideration of great comfort to me, that, if I do err, my 
judgment is not conclusive, and my mistake may be rec- 
tified. As to Dr. Bentley's behavior when served with 
process out of the Vice-Chancellor's Court, I must say 
that it was very indecent, and I can tell, if he had said 
as much of our process, we should have laid him by the 
heels for it. But however i^prehensible it might be for 
him to say of the Vice-Chancellor, stulti egit, such words 
will not justify a suspension or deprivation of academ- 
ical degrees. Be these matters how they will, surely he 
could not be deprived without notice. Our law adopts 
the first rule of natural justice, that no man shall be 
condemned till he has been heard or had an opportunity 
of being heard in his defense. The Vice-Chancellor's 
authority ought to be supported for the sake of keeping 
peace within the University, but then he must act ac- 
cording to law, which I do not think he has done in 
this instance." 

The Puisnies concurred, one of them citing a prece- 



72 REIGN OF GEORGE I. [1722— 

dent of high authority — Adam and Eve's case before 
God himself. Fortescue, y. : " Even God himself did 
not pass sentence upon Adam before he was called upon 
to make his defense. ' Adam (says God), where art 
thou? Hast thou eaten of the tree, whereof I com- 
manded thee that thou shouldst not eat?' And the 
same question was put to Eve also." — A peremptory 
mandamus was granted.' 

There was only one state trial before Chief Justice 
Pratt, that of Christopher Layer, prosecuted for having 
conspired to bring in the Pretender by means of a 
French invasion. On this occasion there was exhibited 
from the bench a harshness which reminds us much more 
of ante-Revolution judges than of the mild demeanor 
of Holt. The prisoner, a gentleman of birth and edu- 
cation, having been brought to the bar at his arraign- 
ment loaded with irons, said, — 

" My Lord, I hope I shall have these chains taken off,, 
that I may have the free use of that reason and under- 
standing which God hath given me. They have brought 
upon me the strangury to a degree that is very painful ; 
and if I am told truly that your Lordship is afflicted 
with that distemper, you will pity me. I hope that these 
chains shall be taken off in the first place, and then I 
hope that I shall have a fair trial." Pratt, C. J. : " As 
to the chains you complain of, it must be left to those 
to whom the custody of you is committed by law, to- 
take care that you do not make your escape ; when you 
come to your trial, then your chains may be taken off." 
Sir Robert Raymond, A. G.: " I am sure nothing is in- 
tended but that he should have a fair trial ; but to com- 
plain here of chains, carries with it a reflection of cruelty,, 
and we know what effect these things may have abroad.. 
The prisoner hath been kept as all persons in his circum- 
stances are when they have been attempting to make an 
escape." Pratt, C. J.: "Alas! If there hath been an 
attempt to escape, there can be no pretense to complain 
of hardship ; he that hath attempted to escape once, 
ought to be secured in such manner as to prevent his 
escaping a second time." Sir Philip Yorke, S. G. : " It 
is well known that when this gentleman was in the cus- 
' Strange, 557 ; 2 Lord Raymond, 1334. 



I725-J JOHN PRATT. 



73 



tody of a messenger, he not only made an attempt to 
escape, but actually escaped out of a window, two pair 
of stairs high. It does not become the candor of a per- 
son in the prisoner's circumstances to aggravate and 
make such misrepresentation of the usage he has re- 
ceived." Gentleman Jailer of the Tower of London : 
" My Lord, he never has attempted to escape since he 
was in my custody." Mr. Hungerford, counsel for the 
prisoner : " My Lord, I beg to be indulged a few words: 
that he is in chains now is demonstrable, and he hath 
told me they are so grievous that he cannot sleep but in 
one posture — on his back. Your Lordship may observe 
that the Gentleman Jailer, who seems to execute his au- 
thority with all humanity, now helps to hold up his 
chains, otherwise he could not stand. I believe I might 
challenge them to give an instance where any prisoner 
was shackled with irons in the Tower before Mr. Layer. 
His Majesty's prisoners in the Tower are such strangers 
to this usage, that the very materials were wanting 
there ; these fetters were sent for from Newgate, and I 
hope they will be sent back thither. Your Lordship 
hath hinted it as an indulgence intended to him when he 
comes to his trial, that his irons shall be taken off; but 
I humbly insist upon it, that by law he ought not to be 
called upon even to plead, till he may exercise his mental 
faculties free from bodily torture." Pratt, C. J. : " This 
is nothing but to captivate the people. What signifies 
his chains being taken off this minute, and afterwards 
put on again the next?" Mr. Hungerford : " We might 
humbly apprehend and hope, my Lord, that the better 
to prepare himself for his trial, he may continue without 
his chains till after that time." Pratt, C. J. : " I am of 
another opinion ; and if we should order his chains to 
be taken off, and he run away, I do not know but we are 
guilty of his escape. He shall have a fair and just trial, 
but to make objections in matters of this nature is to 
cast a reflection on the Court for not doing that which is 
not in their power to do." 

The prisoner was undoubtedly guilty, but the harsh 
manner in which his trial was conducted throughout ex- 
cited a strong sympathy in his favor : he was regarded 



74 REIGN OF GEORGE I. [1725. 

as a martyr ; and his head being stuck upon Temple 
Bar, it was carried off, and long preserved as a relic' 

I am not aware of Pratt coming upon the political 
stage on any other occasion, except when he was con- 
sulted with the other Judges upon the questicns which 
arose out of the disputes between George I. and the 
Prince of Wales (afterwards George II.) respecting the 
power of the reigning King, by his prerogative, to regu- 
late the education and marriages of his grandchildren. 
He spoke immediately after Baron Montagu, who had 
no better reasons to give in favor of the King than the 
discipline among the patriarchs, who educated and gov- 
erned all their 'grandchildren and great-grandchildren, 
and "that the King is called "parens patriae et custos 
regni et pater familias totus regni." Pratt tried to fortify 
himself by modern precedents : — 

" The regulation of marriages in the royal family," 
said he, " is an undoubted prerogative of the Crown, 
proved by all the arguments the nature of the thing is 
capable of, constantly claimed, enjoyed, and submitted 
to, the contrary being ever taken to be a great offense, 
and sometimes thought high treason. The Countess of 
Shrewsbury's case, 12 Rep. 94, is very strong. The Duke 
of Suffolk's attempt was held high treason, proving that, 
at all events, it is an offense of magnitude. The case 
of the Princess of Orange, in Charles II. 's time, is very 
material. The King made the match, and the Duke of 
York her father was against it. The Princess of Modena 
wished to prevent it ; but the King's answer was, ' it is 
by my consent, and none may gainsay it.' Here is the 
claim of prerogative against the opinion and wishes of 
the father. Now as to the education of the children and 
grandchildren of the royal family, that is a natural and 
necessary consequence, — if the Crown has the marriage 
of the royal family, it hath the care of their education. 
If not educated well, they cannot be married well. The 
King having the end, should have the means ; he must 
take care of their persons that they may not be disposed 
of to the prejudice of the nation. This prerogative 
never was disputed by any of the royal family, and many 
have been prosecuted for the breach of it. Not a few 
' 16 St. Tr. 94-324. 



ROBERT RAYMOND. 75 

of the distractions and confusions which attended the 
differences between the Houses of York and Lancaster, 
arose from the marriages and education of the children 
of the blood royal not being regulated by the sovereign 
on the throne." ' 

When Lord Macclesfield, on his impeachment for cor- 
ruption, was deprived of the great seal, there was a gen- 
eral expectation that it would have been transferred to 
"the Chief Justice of the King's Bench, who, without 
being an intriguer, like his predecessor, was well 
esteemed both by the King and the Prime Minister, 
and probably would have been preferred by them to Sir 
Peter King, the Chief Justice of the Common Pleas ; 
but, while the impeachment was pending. Sir John Pratt 
was struck with a mortal disorder, of which he died at 
his house in Ormond Street, on Wednesday, the 24th of 
February, 1725. 

If he was not very eminent for his talents or public 
services, it should be known to his credit that no graver 
charge was ever brought against him than that, "being 
rhe proprietor of Begeham Priory, in Kent, he dis- 
mantled the church, the roof of which was still standing, 
and laid out the site of it in a pleasure-garden, with 
flowers and gravel walks."" 

Having had an immense number of children by two 
wives, and having been careless about his pecuniary 
affairs, he left his family nearly destitute ; but if he had 
been favored with a glimpse into futurity he might have 
seen a son of his Lord High Chancellor, and his grand- 
son and great-grandson marquesses and knights of the 
sarter. 



Sir John Pratt was succeeded in the office of Chief 
Justice of the King's Bench by a man very distinguished 
in his day, who was himself raised to the peerage, and 
was looked upon as the founder of a patrician house, but 
whose line soon became extinct, and who is now little 
known beyond the precincts of Westminster Hall. 

Although Lord Raymond was said to be descended 
from the Crusader of his name celebrated by Tasso, his 
branch of the family had fallen into great decay, and his 

' 15 Tr. 1216. ' Halsted's Kent, ii. p. 380. 



76 REIGN OF GEORGE I. [i68j, 

grandfather was a trader in the City of London. His 
father, however, studied the law, had considerable suc- 
cess at the bar, and in the reign of Charles II., by the 
combination of extraordinary learning and extraordinary 
servility, was made a Puisne Judge, first of the Common 
Pleas, and then of the King's Bench. This unprincipled 
Judge showed peculiar zeal in the famous Quo War- 
ranto prosecution for subverting the liberties of the 
City of London. Chief Justice Saunders being then at 
death's door. Sir Thomas Raymond loudly declared 
that "the Court was unanimously in favor of the Crown 
on all the points which had been discussed ;" and he 
might probably have succeeded in his object if he had 
not been rivaled by Jeffreys, whose splendor of infamy 
dimmed every lesser noxious light which might other- 
wise have attracted the execrations of mankind. The 
aspiring Puisne himself died (some said from vexation at 
his disappointment) while still a young man. If he had 
survived, he no doubt would have been tried in the 
capacity of Chief Justice by James II., and, if there had 
been no limit to his servility, he might have continued 
to preside till the King's power to dispense with all 
statutes, and to enforce martial law in time of peace, 
after being established by judicial decision, was upset by 
physical force. He left behind him a high reputation as 
a lawyer, although a very bad one as a politician ; and a 
volume of Reports compiled by him proves that he was 
a complete master of all the wiles of his profession.' 

At his death, this only son Robert, the subject of this 
little memoir, was only ten years old, and so escaped 
the contamination of his training. The lad naturally 
called himself a Tory, and he continued inclined to high 
prerogative notions till he saw reason to change his side ; 
but through life he maintained a fair character for honor 
and independence. 

I find no more authentic account of his education 
than the inscription on his tomb, which represents him 
as having been early imbued with a love of classical 
learning, and as having devoted himself with extra- 
ordinary assiduity and success to a scientific study of 
jurisprudence. 

' He died while on the circuit in the spring of 1583, in the soth year of 
his age. 



I710-] ROBERT RAYMOND. 



77 



He was called to the bar in the year 1694, being then 
an accomplished lawyer, and he soon got into extensive 
practice. 

His professional prosperity he himself ascribed to his 
habit of reporting. He was determined to rival, and he 
greatly excelled, the fame of his father in this line. 
Not only when he was a student, but when called to the 
bar, when Attorney General, and when Chief Justice, he 
wrote an account of all the most remarkable decisions in 
the Court of King's Bench, giving the arguments of 
counsel and the opinions of the judges with admirable 
point, vigor, and exactness.' 

The first considerable case in which he appeared as 
counsel was the prosecution, before Lord Holt, of Hath- 
away the impostor, who pretended that, being be- 
witched, and having fasted forty days, he vomited pins, 
and who, under pretense of disenchanting himself, had 
assaulted and drawn blood from the supposed witch. 
Mr. Raymond was mainly instrumental in obtaining the 
conviction of this miscreant, which opened the eyes of 
the public to the frauds and follies of witchcraft, 
although, during the seventeenth century they had 
strangely grown with advancing knowledge, to the un- 
speakable disgrace of legislation and of the administra- 
tion of criminal justice in England." 

' His published Reports extend from Easter, 6 Will. & Mary, to Trinity, 
5 & 6 Geo. II. 

' The severest statutes against witchcraft were passed after Lord Bacon 
had published the most valuable of his immortal works, and they were 
blindly acted upon in the age of Milton and Dryden. Mr. Raymond had 
■drawn the indictment against Hathway. A specimen of his legal I,atinity 
taken from it may amuse the reader: — "Quod quidem Richardus Hathway 
nuper, &c., laborer, existens persona malcr' nomenis et famK et impostor, 
et machinans et malitiose intendens quandam Saram Morduck ux' cujusdam 
Edwardi Murdock, Waterman, foeminam per totum vitee suae tempus ex- 
isten' honestam et piam, et non Sagara (Anglice, a witch), nee Magiani 
-(Anglice, witchcraft), Incantamentum (Anglice, enchantment), Fascina- 
tionem (Anglice, sorcery), unquam exercen', in periculo vitas suae amissionis 
inducere 11 die Febr. &c. in presentia et auditu diversorum personarum, 
falso, militiose, diobolice et scient', et ut falsus, impostor, prsetenebat et 
asserebat seipsum per eand' Saram fuisse fascinatum (Anglice, bewitched) 
es occasione fascination' illius non posse edere et per magnum tempus scil' 
per tempus decern septeminar' jejunasse, ac diversis morbis affici, et quod 
ipse per ipsius Richardi extractionem sanguinis ejusd' Sarje per sculpationem 
3l. praetens' fascinatione preed' liberat' foret ; quodque pr^edict' Richardus 
vi et armis eandem Saram scalpsit, et sanguinem ipsius Saroe per scalption 



78 REIGN OF GEORGE I. [1710 

He likewise assisted in prosecuting the famous Beau 
Fielding for bigamy in marrying the Duchess of Cleve- 
land, his former wife being then living. The case turned 
chiefly upon the validity of the first marriage by a Ro- 
man Catholic priest in a private room, and Mr. Ray- 
mond's argument to prove its validity prevailed.' 

Being much connected with the Jacobites, he was em- 
ployed as counsel for David Lindsay, member of a dis- 
tinguished family in Scotland, who, having gone from 
that country to France, in the service of the exiled 
James II., had come into England without having ob- 
tained permission under the privy seal to do so, and was 
now indicted on an act of the English parliament which 
made it treason for any of the King's subjects who were 
abroad when it passed, to come into England, without 
the King's permission under the privy seal first had and 
obtained. The facts were not disputed, and the case re- 
solved itself into a question of law, " whether a native 
of Scotland was bound by this statute?" Mr. Raymond 
powerfully argued that, Scotland and England remain- 
ing separated and independent, the Parliament of Eng- 
land could not legislate for Scotland or Scotchmen : but, 
in answer, the Attorney General cited Calvin's case, 
which was intended for the benefit of Scotland, and by 
which it was decided that all Scotchmen born since the 
union of crowns by the accession of James I. were to be 
considered entitled to the same privileges as native-born 
Englishmen. Mr. Raymond, in reply, without impeach- 

iir extraxit, &c., ubi revera et in facto prad. Richard' nunquam fascinatus 
fuit et nunquam jejunasset per spatium praed' nee per aliquod magnum 
tempus," &c. &c. 

The sentence will give pleasure. After saying that he is to pay a fine of 
100 marks, it thus proceeds ; — " Et quod stabu in et super pilloriam Die 
Sabbati proximo in magis pubhco et aperto loco in Southwarke, inter horam 
decimam et horam tertiam ejusdem diei per spatium duarum horarum cum 
papiro super caput ejus denotante offensam suam," &c. The same cere- 
mony is to be repeated before the Royal Exchange, and again at Temple 
Bar. Then he was to be committed tn the House of Correction : — " Et 
flagelietur die proximo post adventum suum in Domum Correctionis pre- 
dict' et quod custos prsedict' custodiat eum quotidie ad duram laborem per 
spatium dimidii unius anni." — 14 St. Tr. 639. 

' 14 St. Tr. 1327. Secus if the clergyman had been a Presbyterian min- 
ister. This compliment to the Church of Rome became necessary from the 
Anglican Church acknowledging the sufficiency of Popish orders, so as to 
keep up its own descent from the Apostles. 



I7i6.] ROBERT RAYMOND. 79 

ing the authority of this very questionable judgment, 
arguedthat a native-born Scotchman might be permit- 
ted to inherit and hold lands in England, without being 
liable while he remained in his own country, or did not 
reside in England, to be subjected to the pains of treason 
by an English Parliament. Chief Justice Holt and the 
other Judges present overruled the defense, and sen- 
tence of death was passed upon the prisoner; but, the 
public being shocked by such a straining of the law, he 
was respited and pardoned.' 

Mr. Raymond, although he devoted the greatest por- 
tion of his time to his profession, was by no means in- 
different to politics, and still cherished a cordial hatred 
of the Whigs. He saw, therefore, with extreme de^ 
light the blunder which they committed in the impeach- 
ment of Sacheverell, and he assisted Harcourt with his 
advice in defending the champion of the High Church. 
Accordingly, he was rewarded with the office of Solicitor 
General, and received the honor of knighthood. 

As member for Lymington, in Hampshire, he now 
entered the House of Commons; but he seems to have 
confined himself, while in office, to the routine law 
business of the Government there, 

He attached himself chiefly to Bolingbroke, and he is 
supposed to have been privy to the scheme of this bold 
intriguer to bring in the Pretender at the death of 
Queen Anne. Of course he was turned out on the ac- 
cession of George I. 

For six years he remained in opposition, — occupied, 
like most of his contemporaries, in intriguing alternately 
with the banished royal family, and with Tories who 
were willing to submit to the established order of things 
if they themselves might hope by any chance to get into 
power. 

The only great display of his eloquence preserved to 
us is his speech against the Septennial Bill, which is 
very curious as showing us that the Church-and-King 
men of that day held the same language with the mod- 
ern Chartists respecting annual parliaments : — 

"I fear," said he, "the prolonged duration of parlia- 
ments will be no cure for the general corruption sup- 

• 14 St. Tr. 987-1036. 



8c REIGN OF GEORGE I. [1716. 

posed to arise from the frequent elections ; for as the 
■oeriod for which the member is to sit is prolonged, the 
price of his return will increase in the same proportion. 
An annuity for seven years deserves a better considera- 
tion than for three, and those who are willing to give 
money for their seats will be governed in the bargain 
by the true principles of commerce. Nothing will so 
effectually check corruption as annual parliaments. That 
was our ancient constitution, and every departure from 
it has been mischievous. A long parliament is plainly 
destructive of the subject's right, and many ways in- 
consistent with the good of the nation. Frequent new 
parliaments are our constitution, and the calling and 
holding of them was the practice of many ages. Before 
the Conquest, parliaments were held three times every 
year, — at Christmas, Easter, and Whitsuntide. In Ed- 
ward III.'s reign it was enacted 'that parliaments shall 
be holden every year, or oftener if need be.' This must 
be understood of new parliaments, for prorogations and 
long adjournments were not then known, and were not 
heard of till the reign of Henry VIII., who found that 
it best suited his tyrannical purposes to keep up a stand- 
ing body of slavish representatives whom he had cor- 
rupted of intimidated." After giving at great length 
the history of the Triennial Act about to be repealed, 
he thus concluded: — "Frequent and new parliaments 
create a confidence between the King and his people. 
If the King would be acquainted with his people and 
have their hearts, this is the surest way. I can hardly 
think that you wish to perpetuate yourselves ; yet you 
might do so on the same arguments; and if you pass this 
bill, I cannot doubt but that before the end of the seven 
years there will be another bill for a further prolonga- 
tion. But at the end of the time for which you were 
chosen, the people will say, 'you are no longer our rep- 
resentatives ; we chose you for three years and no longer, 
ana you cannot choose yourselves for an extended pe- 
riod ; henceforth you are usurpers, and we have a right 
to put you down.' And I must say that, in my own 
poor opinion (with great submission do I speak it). King, 
Lords. Commons, can no more continue a parliament, 




OLD SUN DIAL AT THK TEMPLE. 



I722.J ROBERT RAYMOND. 8] 

than they can create a parliament without the choice of 
the people.'" 

As the seeming stability of the new dynasty improved, 
the high Toryism of Sir Robert Raymond was softened 
down ; and, at last, he was induced to take ofifice, along 
with Walpole and Townshend, in the administration of 
Lord Stanhope. A vacancy in the office of Attorney 
General arose, when (horresco referens) Letchmere, who 
had enjoyed some eminence in his day, was consigned 
to oblivion by being created Chancellor of the Duchy of 
Lancaster and a peer. Raymond had contracted an in- 
timacy with Walpole during the short period when this 
sagacious statesman was himself in opposition ; and, be- 
ing warned by him against the evils of permanent ban- 
ishment from power, professed to discover that the 
Whigs were now much more reasonable than when 
headed by Godolphin and Marlborough, and declared 
that he might join them without any sacrifice of prin- 
ciple or consistency. He refused to serve under Sir 
Philip Yorke, who, about a year before had been ap- 
pointed Solicitor General at the age of 28, and whoie 
friends were impatient for his further promotion. Many 
taunts were thrown out against the renegade Tory ; but 
Walpole, knowing his value as a law officer of the 
Crown, warmly supported him, and, on the retirement 
of Letchmere, he became Attorney General. 

It is to the credit of Raymond and Yorke that they 
acted together very cordially.- The chief state trial 
which they had to conduct jointly was the prosecution 
of Christopher Layer for high treason. On this occa- 
sion, Mr. Attorney General Raymond thought himself 
bound to show that he was now entirely free from the 
taint of Jacobitism, and thus he commented upon the 
prisoner's scheme to bring in the Pretender : — 

"Gentlemen of the Jury: 'You will readily agree 
with me that nothing can be more dreadful to a true 
Briton who hath any regard for himself or his posterity, 
or love to his country, than the fatal consequences which 
must inevitably have attended such wicked designs had 
they been carried into execution with success. What 

> 7 Pari. Hist. 335. 
Ill — 6. 



82 REIGN OF GEORGE I. [1724. 

could any one have expected from a rebellion in the 
heart of the kingdom, but plunder and rapine and mur- 
der, a total suspension of all civil rights, and a terrible 
apprehension of something yet worse to come? All this 
must have been endured, even if the attempt should 
have been disappointed at last. But had it prospered, 
had his Majesty's sacred person been seized and impris- 
oned, and had the Pretender been placed on the throne, 
what a scene of misery had opened ! A mild adminis- 
tration governed by the law of the land under an excel- 
lent prince and as just and merciful as ever wore the 
crown, must have given way to arbitrary rule under a 
popish tyrant ; all your estates must have been at the 
will of a provoked and exasperated usurper; liberty 
must have been forever subverted, and the best of re- 
ligions would be suppressed by Romish superstition and 
idolatry. Nor would these dreadful calamities have 
been confined within the bounds of his Majesty's do- 
minions ; for should the present happy establishment in 
this kingdom (the chief bulwarlc of the Reformation) be 
destroyed, there is great reason to fear that the Protest- 
ant religion would ere long be extinguished." 

He then proceeded to open the facts of the case in a 
style of invective and rhetorical exaggeration which 
would be very much censured in an Attorney General 
of the present times, but which was then thought quite 
excusable. The prisoner was certainly guilty, and Ray- 
mond, by all except his old friends the Jacobites, was 
praised for convicting him.' 

Nevertheless, Mr. Attorney found his position, both 
at the bar and in the House of Commons, rather irk- 
some. Bishop Atterbury's case came on ; and in taking 
part against this celebrated prelate, he incurred much 
odium, and was often reproached as a turn-coat. He 
therefore wished for the tranquillity of the bench ; and, 
there being no chiefship likely to become vacant soon, 
he astonished the world by sinking into a Puisne Judge 
of the Court of King's Bench, in the room of Mr. Jus- 
tice Eyre. There never before had been an instance of 
an Attorney General accepting a puisne judgeship, and 
hardly any of his condescending even to become Chief 
' 16 St. Tr. 94-324. 



'7 25 -J ROBERT RAYMOND. 83 

Baron of the Exchequer. Till the Revolution, when 
parliamentary government was established, and the prac- 
tice began of his going out with the administration which 
had appointed him, his tenure was as secure as that of 
the judges ; and, drawing higher emoluments than any 
of them, the great seal alone could tempt him readily to 
give up his office as long as his health and strength en- 
abled him to discharge its laborious duties. Raymond 
now, probably, rued his ratting, but return to Toryism 
was impossible, arid his only resource was a retreat in 
which he would be entirely rescued from politics. 

On the 31st of January, 1724, he was called Sergeant, 
giving rings with the motto " Salva libertate potens," 
and, on the 3d of February following, he took his seat 
as junior Judge in the Court of King's Bench.' 

Henceforth he devoted himself exclusively to his ju- 
dicial duties, and he soon showed that he was destined 
to acquire the reputation of a great magistrate. He was 
not only familiarly acquainted with all professional tech- 
nicalities, but he possessed an enlarged understanding, 
and he was capable of treating jurisprudence as a science. 
He, therefore, rose very much in public estimation, and 
(what was of more importance to his further advance- 
ment) he retained the friendship of Sir Robert Walpole, 
who had become Prime Minister, and was desirous of 
indemnifying him for the sacrifices he had made in join- 
ing the Whigs. 

Accordingly, he was appointed a Lord Commissioner 
of the Great Seal when Lord Macclesfield was forced to 
resign it ; and some thought he was likely to be the suc- 
cessor of that illustrious delinquent. But it so hap- 
pened that, about the same time. Lord Chief Justice 
Pratt died, and he infinitely preferred the chiefship of 
his own court to being again launched on the tempest- 
uous sea of politics. He himself, at the commencement 
of his Reports for Easter Term, 1725, gives us this sim- 
ple statement of his elevation : — 

" Memorandum : that Sir John Pratt, Knight, Chief 

' The next judge who followed this example was Sir Vicary Gibbs. 
" When Mr. Percivat was shot at," says Lord ISrougham, " his nerves, for- 
merly excellent, suddenly and entirely failed him ; and he descended from 
the station of Attorney General to that of a Puisne Judge in the Common 
Pleas." — Statesman, vol. i. p. 133. 



84 RRIGN OF GEORGE I. [1731 

Justice of the KingV Bench, died Wednesday, February 
the 24th last past, and I was created Chief Justice in his 
place by writ bearing teste March 2, and was sworn into 
the office March 3 following, before Sir Joseph Jekyll, 
Knight, Master of the Rolls, and Sir Jeffrey Gilbert, 
Knight, one of the Barons of the Exchequer, then two 
of the Lords Commissioners for the custody of the Great 
Seal ; notv/ith=tanding which, I continued one of the 
Commissione'':; of the Great Seal, and Sergeant Rey- 
nolds was swcrn in before me and the other Lords Com- 
missicnfra. to be my successor as a Puisne Judge." ' 

He rcntinued to preside in the Court of King's Bench, 
with high distinction, above seven years ; and, as a tes- 
timony of respect for his services, he was raised to the 
peerage by the title of Lord Raymond, Baron Raymond 
of Abbots Langley in the county of Hertford, being the 
third Chief Justice of the King's Bench who had re- 
ceived a similar honor.' 

We know from contemporary testimony that he was 
much admired and respected as head of the Common 
Law ; but we have now very slender means of estimating 
his merits. Although he continued the Reporter of the 
Court of King's Bench, and he has handed down to us 
many of his own decisions, he does by no means the 
same justice to himself which he had done to Lord Holt. 
This Chief would have been immortalized by his judg- 
ment in the Aylesbury Case on parliamentary privilege, 
and in Coggs v. Bernard on the doctrine of bailments, as 
Lord Raymond has given them to the world — but, from 

' Lord Raymond, 1381. 

^ Coke, Hale, and many others, are still called Lords ; but Jeffreys and 
Parker were the only preceding Chief Justices who had been ennobled, and 
doubts had been entertained whether a peer could sit as a ummon law 
judge. 

" 1730(1). Jan. 21. Then Sir Robert Raymond, Kt., Ld. Ch. J. of His 
Majesty's Court of King's Bench, being, by letters patent, dated 15 die 
Januarii, 1730, Annoq. regni Georgii Secundi Regis Quarto, created Lofd 
Raymond, Baron of Abbots Langley, in the county of Hertford, was in his 
robes, introduced, between the Lord De Lawarr and the Lord Bino-ley, also 
in their robes ; the Gentleman Usher of the Black Rod, Garter^Kins; of 
Arms, the Deputy Earl Marshall of England, and the Lord Great Cham- 
berlain, preceding. His Lordship presented his patent to the Lord Chan- 
cellor, on his knee, at the woolsack ; who delivered it to the clerk • and the 
same was read at the table. His Lordship's writ of summons was also 
read," &c. He then took the oaths, and was " placed on the lower end of 
the Baron's Bench." — 23 Lords' yaumals, 591, 592. 



I727-J . ROBERT RAYMOND. 85 

modesty, or from want of leisure, or from carelessness, 
during the time when he himself presided, he hardly 
ever mentions the Chief Justice separately, and generally 
introduces the determination of the case with the words 
''per Curiam" or " the Court thought," or " we were all 
agreed." Nor do the cases at that period seem to have 
been numerous or important ; and, to fill up time, and 
to appear to have an air of business, the most was made 
of every matter which came in for adjudication. Thus 
the question " whether Jtil debet was a good plea to an 
action of debt on a deed to recover a penalty for breach 
of covenant ?" was solemnly argued four different times, 
in four successive terms, before the Court would hold 
the plea to be bad.' 

But I can give specimens of Lord Chief Justice Ray- 
mond's performances which do him credit. He it was 
who first established the important doctrine that to 
publish an obscene libel is a temporal offense, subjecting 
the party to be prosecuted and punished as for a mis- 
demeanor. The infamous Edmund Curl, held up to 
eternal detestation and ridicule by Pope in the DUNCIAD, 
was charged by a criminal information in the language 
then used — " Quod ille existens homo iniquus et scelera- 
tus ac nequiter machinans et intendens bonos mores 
subditorum hujus regni corrumpere, et eos ad nequitiam 
inducere, quendam turpem et obsccenum libellum, in- 
titulatum ' Venus in the Cloister, or the Nun in her 
Smock,' impie et nequiter impressit et publicavit ac im- 
primi et publicari causavit [setting out the several lewd 
passages in English] in malum exemplum," &c. Having 
been tried and found guilty by the jury, his counsel 
moved in arrest of judgment on the ground that, how- 
ever he might have been punishable in the Ecclesiastical 
Court for an offense contra bonos mores, this was not an 
offense of which the common law could take cognizance ; 
arguing that " notwithstanding the filthy run of obscene 
publications in the reign of Charles II., there had been 
no prosecution for any of them in the temporal courts, 
and that whatever tends to corrupt the morals of th? 
people ought to be censured only as an offense against 

> Warren v. Cousett, Tr. Term, 13 Geo. I. ; 2 St. Tr. 778. 



86 REIGN OF GEORGE 7j [1725- 

religion by my Lords the Bishops." Of this opinion 
was Mr. Justice Fortescue, who said, — 

" I own this is a great offense, but I know of no law 
by which we can punish it. Common law is common 
usage, and where there is no law there can be no trans- 
gression. At common law, drunkenness and cursing and 
swearing were not punishable. This is but a general 
solicitation of chastity; and to make it indictable, there 
should be a breach of the peace." 

Lord Raymond, C. J. : " I am of opinion that to pub- 
lish any writing which reflects on religion, virtue, or 
morality, is an act which tends to disturb the civil order 
of society, and is a temporal offense. It is not merely a 
sin, but a crime ; it is directly hurtful to others, as well 
as contrary to the soul's health of the offender. Why 
is this court called the censor morum if we cannot punish 
that which subverts all morality? For verbal scandal 
there may be a suit in the spiritual court, and penance 
may be inflicted ; but for the injury done to the public 
by an obscene libel, this is the proper tribunal." 

The matter stood over till another term, when, Mr. 
Justice Page having succeeded Mr. Justice Fortescue, 
the Judges were unanimous in discharging the rule to 
arrest the judgment, and the defendant was set in the 
pillory, " as," says the reporter, " he well deserved."' 

It was in Lord Raymond's time that the law of mur- 
der and manslaughter was brought to the degree of 
precision in which we now find it, with all its nice dis- 
tinctions and refined qualifications. The practice then 
prevailed of the jury finding the facts by a special ver- 
dict, and leaving the guilt or innocence, or the degree of 
guilt, of the prisoner as a question of law to the judges. 

One of the most interesting cases of this kind was the 
trial of Major Oneby for the murder of Mr. Gower. 
These two gentlemen, noted for their fashion and gal- 
lantries, had a dispute while playing at hazard in a tav- 
ern in Drury Lane, and the prisoner called the deceased 
"an impertinent puppy;" the deceased answered, "who- 
ever calls me so is a rascal." The prisoner then threw a 
bottle at the head of the deceased, which brushed his 
peruke as it passed, and beat some hair-powder from it. 
> 2 Str. 788 ; 17 St. Tr. 153. 



*725j ROBERT RAYMOND. 87 

Thereupon the deceased tossed a candle at the prisoner 
■without hitting him. They both drew their swords, but 
were prevented by the company from fighting, and 
again sat down to play. At the expiration of an hour 
the deceased said to the prisoner, " We have had hot 
words ; you were the aggressor, but I think we may pass 
it over," and at the same time offered him his hand; — 
to which the prisoner answered, " No, damn you ! I 
will have your blood." The reckoning being paid, the 
company had all left the room except the prisoner, who 
addressing the deceased, said, "Young man, come back, 
I have something to say to you." The deceased re- 
turned. Immediately the door was closed, and the 
■clashing of swords was heard. When the company re- 
entered they found that the deceased had been run 
through the body by the prisoner, — and next day he 
died of his wounds. The prisoner had received three 
slight wounds in the rencounter. The deceased on his 
death-bed being asked " whether he received his wound 
in a manner called yazV among swordsmen?" answered 
^' I think I did." The jury found that, "from the throw- 
ing of the bottle till the mortal thrust was given, there 
had been no reconciliation between the parties ; — but 
whether this was murder or manslaughter, they prayed 
the advice of the Court." The counsel was about two 
years in drawing up the special verdict which stated 
these facts; and the prosecutor took no steps to bring 
the case to a hearing, seeming rather inclined to let the 
proceedings drop. But the prisoner, who had been 
living all the time gaily in Newgate, grew very confi- 
dent, and feed counsel to move the Court to fix a day 
for proclaiming his innocence. The special verdict was 
twice argued ; first before the four Judges of the King's 
Bench, and then before all the twelve Judges of Eng- 
land. 

Sergeant Eyre and Mr. Lee (afterwards Chief Justice), 
counsel for the prisoner, argued that this was a case of 
manslaughter, for which the punishment was merely 
burning in the hand ; contending that " there was here 
no malice aforethought, which was necessary to mur- 
der ; the killing was on a sudden occasion ; manslaughter 
is killing without premeditation; ira furor brevis est; 



88 REIGN OF GEORGE /. [n^S- 

and therefore, as a madman, the party is excused for 
what he does in a transport of passion : the calling the 
prisoner a rascal was what no man of honor could put 
up with, and this was the beginning of the quarrel ; the 
fighting was as sudden as the reproachful words; words 
alone would not reduce the offense to manslaughter, and 
if the prisoner had at once stabbed the deceased it 
might have been murder ; but the was 'an interchange 
of blows, and the deceased himself allowed that it was a 
fair fight ; there was an interval, but no reconciliation, 
and the law has fixed no certain time when the presump- 
tion arises that the passions of men are cooled : besides, 
no one saw the beginning of the actual affray ; the de- 
ceased certainly struck several blows, and might have 
first struck and wounded the prisoner before the latter 
even drew his sword the second time : the law under 
such circumstances would mercifully presume provoca- 
tion, which would reduce the case to manslaughter." 

Lord Raymond, in a very long and most admirable 
judgment, pronounced the unanimous opinion of all the 
Judges that the prisoner was guilty of murder. After 
showing that the malice necessary to constitute murder 
was not a settled danger or long cherished revenge, but 
unprovoked deadly violence without provocation or ex- 
cuse, he observed, — 

" Mr. Gower did nothing that could reasonably rais& 
a passion in Major Oneby. The answer of Mr. Gower,. 
on being called an impertinent puppy , was not more than 
might have been expected, that ' whosoever called him 
so was a rascal.' Major Oneby, who had begun the 
abusive language, then violently threw the glass bottle. 
After they had been restrained from fighting, and had 
sat an hour at play, the proposal of Mr. Gower ought to 
have appeased Major Oneby; but what was his answer? 
' No, damn you, I will have your blood !' These words, 
show his malicious intent even in throwing the bottle. 
Then followed the imperious and insolent command, 
' Young man, I have something to say to you !' As soon 
as Mr. Gower had returned, the door is shut, and a clash- 
ing of swords is heard, when Mr. Gower received the 
mortal wound of which he died. If the prisoner had 
malice against the deceased, though they fought aftet 



I725-J ROBERT RAYMOND. 89 

the door was shut, the interchange of blows will make 
no difference ; for if A. has malice against B. and meets 
B. and strikes him, B. draws, A. flies to the wall, A. kills 
B., it is murder. Nay, if the case had been that there 
was mutual malice, and they had met ard fought, the 
killing would have been murder. All the judges are of 
opinion that in this case there was malice in the prisoner. 
The defense rests upon this being a sudden quarrel in 
which there was great provocation from the deceased ; 
but if there was sufficient time for the blood to cool, and 
reason to get the better of the transport of passion be- 
fore the mortal wound was given, the killing will be 
murder, and all the Judges are of opinion that the act 
was deliberate. It was not necessary that malice should 
be found by the jury in the special verdict. This is 
matter of law for the Court. The jury may find a gen- 
eral verdict, either that the prisoner is guilty of murder 
or of manslaughter ; but if they find the facts specially, 
the court is to draw the conclusion, whether there was 
malice, or whether the deed was done on a sudden trans- 
port of passion. It has been adjudged that if two men 
fall out in the morning, and meet and fight in the after- 
noon, and one of them is slain, this is murder, for there 
was time to allay the heat, and their meeting was of 
malice. Though the law of England is so far peculiarly 
favorable (I know no other law that makes such a dis- 
tinction between murder and manslaughter) as in some 
instances to extenuate the greatest of private injuries, 
as the taking away a man's life is, yet it must be such a 
passion as for the time deprives him of his reasonable 
faculties ; for if it appears that reason has resumed her 
sway over him, if it appears that he reflects, deliberates 
and considers before he gives the fatal stroke, the law 
will no longer, under the pretext of passion, exempt 
him from the punishment inflicted on murder. It is 
urged that, from the prisoner's three wounds, a new and 
sudden quarrel might have arisen, in which Mr. Gower 
might be the aggressor ; but it lies on the party indicted 
to prove this quarrel, and none such being found by the 
jury, we are not at liberty to presume that there was 
any. The last fact relied upon is, that Mr. Gower on 
his death-bed allowed that the fight was fair. The 



9° 



REIGN OF GEORGE 1. [1725 



aniwer is, that if A. have malice against B., and they 
meet and fight, though the fight is never so fair accord- 
ing to the law of arms, yet if A. kills B. it will be mur- 
ler." Lord Raymond then cited all the authorities on 
the subject from the earliest times in support of the 
doctrines he had laid down, and he concludes his own 
report of the case with the following " Memorandum : 
As soon as I delivered this resolution, I desired my 
brothers Fortescue, Reynolds, and Probyn, that if they 
disapproved anything I had laid down, they would ex- 
presstheir disapprobation, but they publicly declared 
that they consented i7i omnibus."^ 

The prisoner declared that, "as he hoped for mercy at 
the hands of Almighty God, he had never used the ex- 
pression so much pressed against him, ' I will have your 
blood ;' " and, having fought with distinction in all the 
Duke of Marlborough's campaigns, he prayed "that he 
might be recommended to his Majesty's clemency foi 
his past services in the cause of his country." 

Lord Raymond: " As to the words, seeing that they 
were sworn to, and stand in the special verdict, I am 
sorry to say your denial can avail you nothing ; and we 
sitting here only to declare the law, you must apply 
elsewhere for mercy." 

Mr. Justice Fortescue, the senior Puisne Judge, pro- 
nounced sentence of death. Before the day fixed for 
the execution, came news of the death of George I. at 
Osnaburgh, and great interest was made with the new 
Sovereign to begin his reign with an act of grace by par- 
doning Major Oneby; but George II. declared that, 
" the Judges having unanimously adjudged the prisoner 
guilty of murder, the law should take its course." Never- 
theless, Major Oneby disappointed the executioner by 
opening an artery in his arm, so that he bled to death, 
the night before the day when he was to be hanged at 
Tyburn," and he was buried in a highway with a stake 

' 2 Lord Raymond, 1500. 

'' One contemporaneous account says, — " About seven in the morning he 
said faintly to his footman, who came into the room, ' Who is that, Philip ?' 
A gentleman, coming to his bed-side soon after, called ' Major ! ' Major !' 
but hearing no answer, drew open the curtains and found him weltering in 
his blood and just expiring. Mr. Green, a neighboring surgeon, was in- 
stantly sent for, but before he came the major was dead. He had made so 
deep a wound in his wrist with a penknife that he bled to death." 



1730-J ROBERT RAYMOND. 



91 



driven through his body. Although he had been a gal- 
lant_ soldier, he was a man of very bad moral character, 
having lived, since his regiment was reduced at the 
Peace of Utrecht, as a professional gamester, and having 
before killed several antagonists in duels brought on by 
his extreme arrogance.' 

The' next trial for murder which I have to mention 
arose out of an address to the public by THOMSON, in 
his Winter, in favor of the miserable victims then con- 
fined in our jails. This was caused by the death of a 
prisoner in Fleet of the name of Arne, who had been 
confined for debt, and had expired under circumstances 
the most heartrending. The poet, after a compliment 
to the humanity of some humane individuals who, 
" touched with human woe," had searched " into the 
horrors of the gloomy jail," thus proceeds: — 

..." Where sickness pines, where thirst and hunger bum, 

And poor misfortune feels the lash of vice. 

O great design ! if executed well, 

With patient care and wisdom-tempered zeal. 

Ye sons of mercy ! yet resume the search ; 

Drag forth the legal monsters into light, 

Wrench from their hands oppression's iron rod, 

And bid the cruel feel the pains they give." 

In consequence, the affair was taken up by the House 
of Commons, who, after an investigation by a select 
committee, addressed the Crown, praying that John 
Huggins, the warden, and James Barnes, the deputy 
warden, of the Fleet, should be prosecuted by the At- 
torney General for the murder of Edward Arne. 

The trial came on at the Old Bailey before Mr. Jus- 
tice Page, when the jury returned a special verdict, find- 
ing " that while Huggins was warden, and Barnes deputy 
warden, of the Fleet, Arne was committed to that 
prison ; that Barnes confined him in a cold, damp, un- 
wholesome cell over the common sewer, knowing the 
same to be dangerous to life, and he kept him there 
forty days, absque solamine ignis, necon sink aliqua niatula, 
scaphis, vel aliquo alio hujusmodi utensilii ;^ that Arne 
died from this imprisonment ; and that during his de- 

' 17 St. Tr. 30-74; 2 Str. 766 ; 2 Ld. Raym. 14S5 ; i Burr. 178 ; Select 
Trials at the Old Bailey, li. 153. 

' All indictments and special verdicts were still in Latin. 



92 REIGN OF GEORGE J. [i73» 

tention in the cell, Huggins was once present, saw him 
under the duress of the said imprisonment, and turned 
away without doing anything to relieve him." After 
the special verdict had been twice argued before the 
Judges, Lord Raymond delivered judgment : — 

"In this case two questions arise: — i. What crime 
the facts found upon Barnes in the special verdict will 
amount to ? 2. Whether the prisoner Huggins is guilty 
of the same offense with Barnes ? As to the first ques- 
tion, it is very plain that the facts found upon Barnes 
do amount to murder in him. Murder may be com- 
mitted without any stroke. The law has not confined 
the offense to any particular circumstances or manner of 
killing ; there are as many ways to commit murder as to 
destroy man. Murder is where a man kills another of 
malice, so he dies within a year and a day ; and malice 
may be either expressed or implied. Upon the facts 
found there is plain malice arising in construction of 
law. If a prisoner by duress of the jailer comes to an 
untimely end, it is murder, without any actual strokes 
or wounds. The law implies malice in such a case, be- 
cause the jailer acts knowingly in breach of his duty. A 
prisoner is not to be punished in jail, but to be kept 
safely. The nature of the act is such as that it must 
apparently do harm. It is also cruel, as it is committed 
upon a person who cannot help himself. So the charge 
of murder against Barnes is fully established. 3. The 
next question is, whether Huggins be guilty of the same 
offense ; and the Judges are unanimously of opinion that 
upon the facts found he is neither guilty of murder or 
manslaughter. As warden, he shall answer for the acts 
of his deputy civilly, but not criminally. It nowhere 
appears in the special verdict, that he ever commanded 
or directed, or consented to, this duress of imprison- 
nr.ent which was the cause of Arne's death. The ver- 
dict finds that once the prisoner Huggins was present, 
and saw Arne under the duress of the imprisonmeiit, and 
turned away ;'' but it by no means follows that he knew 
the man to be under this duress. We are told by the 
counsel for the Crown that if he saw the man under this 
duress he must know it, and it was his duty to deliver 

• " Sub duritie imprisonamenti prsedicti et se avertit," 



730-] ROBERT RAYMOND. 



93 



him. But we cannot take things by inference in this 
manner. The seeing him does not imply a knowledge 
of the several facts which make the duress, which con- 
sists of several ingredients and circumstances not to be 
discovered upon sight. If the evidence would have war- 
ranted it, the jury should have found that he knew and 
that he consented to what Barnes had done. Malice is 
an inference of law for the Court, but consent is a fact to 
be found by the jury.' Then if the verdict be defective, 
we are pressed for a new trial ; but, without determining 
the question whether after a special verdict in felony 
there may be a venire de novo, we are all of opinion that 
this verdict is not so uncertain as that judgment cannot 
be given upon it. The facts found are positively found ; 
but, taken together, are not sufficient to make Huggins 
guilty of murder, and therefore he must be adjudged 
NOT GUILTY.' 

There is one other case of the same kind before Lord 
Raymond, which is worthy of notice. In the popular 
rage then prevailing against jailers, Thomas Bambridge, 
3. former warden of the Fleet, was indicted for the mur- 
der of Robert Castell, on the ground that he had con- 
fined him in a house in which there was a man lying ill 
■of the small-pox, a disease which Castell had not had, 
.and which he caught and died of. The indictment com- 
ing on for trial at the Old Bailey before Mr. Justice Page, 
Bambridge was easily acquitted on the evidence for the 
prosecution ; but, instigated by a mobbish confedera- 
tion, who subscribed large sums of money to gain their 
object, Mrs. Castell, the widow, sued out an " appeal of 
murder" against Bambridge, and likewise against Cor- 
bett, his deputy, who, in case of need, was to have been 
called as his principal witness. The appellees, instead 
of waging battle and defending themselves by their 
champions in the listed field, as they might have done, 
put themselves upon the country, and they were ttied 
by Lord Raymond and a jury of London merchants. 
The prosecution was conducted with great zeal by Mr. 
Reeves, afterwards Chief Justice of the Common Plea-., 
and Mr. Lee, afterwards Chief Justice of the King's 
Bench; and they contrived, by dextrous management, 

'17 St. Tr. 297-3S2 ; 2 Lord Rayra. 1574. 



94 



REIGN OF GEORGE I. [1730- 



to make out a sort of prima facie case. The appellants 
were ably defended by Sergeant Darnell and Sergeant 
Eyre, who both addressed the jury in their favor in long 
and eloquent speeches,' and, by calling witnesses, they 
made out a clear defense. Lord Raymond, in summing 
up the case to the jury, said, — 

" This appeal by Mary Castell, for the death of her 
husband, is grounded on the doctrine that as the law has 
particular guards and privileges in justifying the right of 
a jailer in detaining prisoners in safe custody, so on the 
other hand he must treat them humanely and put them 
into such places as do not prejudice their limbs and lives; 
for if they are put into such places and they die, this is 
murder. If a jailer brought bodies that were infectious 
into a room, so that a prisoner should catch a mortal dis- 
temper, or put him into irons by which he should die, 
the legal result is the same. Likewise if a jailer will 
take persons that have not a distemper, and carry them 
to a room against their consent after notice given to him 
that such a distemper is there, it is at his peril. In the 
present case, gentlemen, these circumstances must be 
concurrent, that the deceased was carried to the house 
against his will ; that the distemper was in the house ; 
that the appellees had notice of the distemper being 
there ; that, notwithstanding, he was carried and kept 
there, and that thereby he caught the distemper which 
was the occasion of his death." 

He then went over the whole of the evidence, and 
showed that, with respect to Corbett, there was nothing 
to prove any knowledge of the distemper being in the 
house ; and, with respect to Bambridge, that Castell had 
gone with him to the house voluntarily, and had made 
no complaint while there till he caught the infection. 
The jury found both appellees NOT GuiLTY ; but, from 
the popular prejudice against them, they had been in 
considerable jeopardy." 

' It was only upon indictments in the name of the King that, at common 
law, prisoners were deprived of the assistance of counsel in capiial cases. 
If the proceeding was by appeal, the trial was conducted as if it had been 
a civil action. 

' 17 St. Tr. 383-462 ; 2 Str. 854. Notwitstanding this flagrant abuse 
of the proceeding of appeal of murder, it continued till the year 1819, 



1 73 1 -J ROBERT RAYMOND. 95 

I have now to present to the reader Lord Raymond 
sitting as judge on the trial of an information for libel. 
His authority has been mainly relied upon to support 
the doctrine that, in such a proceeding, the truth of the 
assertion of fact alleged to be libelous is wholly imma- 
terial, and that libel or no libel is a pure question of 
law for the Court. The leading opposition journal of 
that day was the CRAFTSMAN, to which Pulteney, Bo- 
lingbroke, and the other antagonists of Sir Robert Wal- 
pole, were constant contributors. In No. 235, dated 2d 
of January, 1730-1, there appeared a letter which pur- 
ported to come from a correspondent at the Hague, but 
which in reality was written by Bolingbroke in London, 
most bitterly inveighing against the foreign policy of 
the Government, and imputing very disreputable con- 
duct to ministers in their negotiations with foreign 
states. This was particularly obnoxious to King George 
n., who was then engaged in deep political intrigues, 
with the view of adding a few acres to the electorate of 
Hanover; and, to please him. Sir Philip Yorke, the At- 
torney General, prosecuted Francklin, the printer and 
publisher, who was a bookseller in Fleet street. " At 
the trial, a vast crowd of spectators of all ranks and con- 
ditions were assembled, and the court was crowded with 
noblemen and gentlemen. It was remarkable that Mr. 
Pulteney, presumed to be one of the patrons of the 
prosecuted paper, was loudly huzzaed by the populace 
in Westminster Hall, which shows the fondness of the 
people of England for the freedom of the press." ' 

The Attorney General contented himself with proving 
a preliminary averment in the information respecting 
the existence of a treaty, and the purchase in the de- 
fendant's shop of a oopy of the newspaper containing 
the Hague letter. Mr. Fazakerley, on the other side, 
contended that the case for the Crown was defective, 
because no evidence had been given to falsify the state- 
ments in the letter, which he could prove were true, and 

when it was abolished upon Abraham Thornton throwing down his gaunt- 
let on the floor of the Court of King's Bench, and demanding trial by 
battle, ut vidi. See 59 Geo. III. t. 46. 
' Boyer's Political State of Europe, 1731. 



96 REIGN OF GEORGE I. [1725— 

that, in reality, the jury ought to find that the letter v/as 
no libel, as it did not in any degree reflect upon the 
King, and only made fair observations on the conduct of 
his ministers : — 

Lord Raymond, C. J. : " My opinion is, that it is not 
material whether the facts charged in a libel be true or 
false, if the prosecution is by information or indictment. 
There are legal remedies provided for every one who is 
injured, without scandalizing others. Above all, the 
character of a magistrate, minister of state, or other 
public person, is to be protected. The law reckons it a 
greater offense when the libel is pointed at persons in a 
public capacity, as it is a reproach to the King to em- 
ploy corrupt and incapable persons. Such charges tend 
to sow sedition and to disturb the peace of the kingdom. 
Therefore I shall allow no evidence to prove that the 
matters charged in the libel are true. If you think 1 am 
wrong, apply to the Court, and they will do you jus- 
tice." In summing up he said, " There are here three 
things to be considered, two of them being for the jury, 
and the third for the Court, i. Did the defendant, Mr. 
Francklin, publish this Craftsman or not ? 2. Do the 
expressions in the letter allude to the King and his min- 
isters according to the innuendoes? These are matters 
of fact for your consideration, of which you are the 
proper judges, and if you think in the affirmative on 
both questions, you will find a verdict of guilty. There 
is a third question — whether these defamatory expres- 
sions amount to a libel or not? This belongs to the 
office of the Court, for it is a matter of law, of which the 
Court are the only proper judges. We are not to invade 
each other's provinces, as has been suggested of late by 
those who ought to have known better." 

The jury having found the defendant guilty of pub- 
lishing the libel, he was sentenced to a year's imprison- 
ment and to pay a fine of .£'100.' 

' 17 St. Tr. 625-676. He was more lucky another time, when his ac- 
quittal gave rise to Pulteney's ballad — " Sir Philip well knows that his in- 
nuendoes," &c. _ (See post, in Life of Lord Mansfield.) Looking to these 
exploded heresies, which then passed for gospel, it is curious to conjecture 
whether any, and which of the doctrines which are now reverentially 
cherished will be anathematized by posterity. 



17 51 -J ROBERT RAYMOND. 97 

Lord Raymond's authoritj as a judge was so high that 
his decisions at Nisi Prius, when sitting all alone trying 
causes by jury, were reported, and settle many im- 
portant points which, till then, were doubtful ; as, that 
" a husband is not liable to be sued for necessaries sup- 
plied to his wife if she has eloped from him with a par- 
amour ;'" that, " if goods which are not necessaries are 
supplied to a minor, he is bound by a promise made 
after coming of age to pay for them ;'" that, " if a man 
render services for which he would otherwise be entitled 
to be paid, he cannot maintain an action for them if he 
rendered them to ingratiate himself in hopes of a legacy, 
although the party who receives them dies without leav- 
ing him anything ;'" and that, " notwithstanding the old 
maxim, pater est quern nuptiae demonstrant, the child of a 
married woman may be proved to be illegitimate by 
evidence that her husband could not have been the 
father of the child, although he was living within the 
four seas."* 

Lord Raymond was sworn a member of the Privy 
Council when made Chief of the King's Bench ; and, 
as often as George L or George H. went abroad, he was 
constituted one of the Lords Justices for the govern- 
ment of the kingdom in the King's absence ; but in 
these capacities he confined himself merely to going 
through formalities. He would take no active part in 
politics ; and, although he steadily voted for Sir Robert 
Walpole's government, he never spoke upon any party 
question. 

The only debate in which I can find that he ever 
mixed in the House of Lords was on the bill enacting 
that all legal proceedings should be conducted in the 
English language. I am sorry to say that he opposed 
it as a dangerous innovation, thinking that barbarous 
Latin should still be used to express a criminal charge 
in an indictment, the meaning of it being quite unintel- 
ligible to the party accused, whether illiterate or a good 

' Morris V. Martin, 1 Str. 647 ; Manwaring v. Sands, a Str. 706. 

• Southerton v. Whitlock, 2 Str. 690. 

» Osbom V. Guy's Hospital, 2 Str. 728. 

* Pmdrell v. Pendrell, 2 Str. 924. 

Ill — 



98 REIGN OF GEORGE II. [i7«5— 

classical scholar. Lord Raymond ridiculed the sup- 
posed necessity for records being in the vernacular 
tongue, by observing that, " upon this principle, in an 
action to be tried at Pembroke or Caernarvon, the 
declaration and plea ought to be in Welsh." The Duke 
of Argyle courteously answered, that " he was glad to 
perceive that the noble and learned lord, perhaps as 
wise and learned as any that ever sat in that House, had 
nothing to bring forward against the bill but a joke.'" 

I have been able to discover very little of Lord Ray- 
mond in private life. He seems to have associated only 
with lawyers. He resided chiefly in Red Lion Square, 
then the seat of the legal aristocracy ;' and he had a 
country-house in Hertfordshire, where he bought a large 
estate. After a short illness, he died, in Red Lion 
Square, on the 15th of April, 1733, in the 6ist year of 
his age ; and he was buried at Abbot's Langley. 

At the east, end of the parish church is to be seen a 
handsome marble monument of Lord Chief Justice Ray- 
mond, who is represented in a sitting posture, leaning 
upon a pile of books : in his right hand he holds a scroll, 
upon which is written " Magna Charta ;" his left is 
stretched out to receive a coronet, presented to him by 
a child ; on his right hands sits a lady, in a mournful 
posture, holding over him a medallion, upon which is 
the head of a youth, carved in relief. 

Under the shield containing his arms there is the fol- 
lowing inscription : — 

" 8 Pari. Hist. 861. In palliation of Lord Raymond's prejudice in 
favor of ancient absurdities, I may observe that I have heard judges in my 
own time lament the change then introduced, on the ground that although 
it might be material for the parties, both in civil and criminal proceed- 
ings, to have some notion of what is going on, the use of the law Latin 
prevented the attorneys' clerks from being so illiterate as they have since 
become. I may likewise mention the ruling of a Welsh judge about 
thirty years ago, on a trial for murder, " that the indictment and the 
evidence must not be interpreted into Welsh for the information of the 
prisoner, as that would be contrary to the statute of George II. which 
requires all proceedings to be carried on in the English language." 

' Such a change had been produced by the lapse of a century, that, 
to denote the inferiority of the class now to be found there, I have heard 
the comparison, " as proud as a judge's wife at a rout in Red Lion 
Square " 



'733-] ROBERT RAYMOND. ,9 

" OBLATOS HONORES FILII GRATIA ACCIPIT JUDEX ^QUISSIMU* 

M. S. 

Honoratissimi viri Robevti Raymond, 

Baronis de Abbot's Langley ; 

Cujus meritis rare example respondit Fortuna ; 

honesto enim loco natus, tc 

literisque humanioiibus prima Eetate excultus, 

universam juris scientiam, cui sese addixerat, 

tanta ingenii facilitate complexus est, 

ut inter prsecipuos causarum patronos 

brevi tempore haberetur ; 

in quo munere exequendo, 

cum pari fide solertia atque gravitate 

indies magis magisque inclaruisset, 

ad diversos juris honores gradatim ascendit ; 

donee augustissimorum principum Georgii I. et II. jussu 

Capitalis AngiljE Justiciarius constitutus, 

mox, ut uberiorem virtutis sure frunetum caperet, 

in amplissimum procenim ordinera 

Cooptatus est." 

He left behind him one son, by his wife, who was a 
daughter of Sir Edward Northey, Attorney General to 
Charles II. 

The second Lord Raymond was not very distinguished, 
and I do not find him noticed except in the proceedings 
against Astley and Cave for printing an account of Lord 
Lovat's trial — when he was chairman of the committee 
to whom the matter was referred, and moved their com- 
mitment. He was married to a daughter of Lord Vis- 
count Blundell, of the kingdom of Ireland ; but, dying 
without issue, in the year 1756, the title became ex- 
tinct.' 

The Chief Justice's Reports" are the great glory of 
the family, and have obtained his introduction into 
Horace Walpole's Catalogue of Royal and Noble Au- 
thors, who describes him as " one of those many eminent, 
men who have risen to the peerage from the profession 
of the law."' 

The warmest eulogium pronounced upon Lord Ray- 
mond is in the dedication to him of the Reports of 

' It is a curious fact that Lord Kenyon is the first ennobled Chief Justice 
of the King's Bench of whom there is a descendant now a member of the 
House of Lords. 

- These reports were first printed in 1743, and a second edition came out 
in [745. The last edition, by Mr. Justice Bayley, with valuable notes, ap- 
peared in 1790. From the multiplicity of modem Reports, the old ones will , 
probably never be reprinted. 

* Works, vol. i p. 245. 



100 PHILIP YORKE. [1737. 

Chief Baron Comyns. The eulogist, after describing 
the splendor of his reputation as supreme magistrate of 
the common law, adds — 

" The difficulty of succeeding a person so truly emi- 
nent as your Lordship's noble and learned predecessor 
was toe apparent to all the world ; but I may venture 
to add, with as much truth, that his Majesty (whose 
great regard and paternal affection for his subjects can 
appear in nothing more than so worthily filling the seats 
of justice) never gratified them in a more sensible man- 
ner than when he conferred that honor on your Lord- 
ship ; for, however excellent great abilities and profound 
science are in themselves, however necessary to persons 
intrusted with the public sword of justice, they only be- 
come truly valuable to the rest of mankind when gov- 
erned and directed by the rules of honor, virtue, and in- 
tegrity.'" 

On the death of Lord Raymond, the office of Chief 
Justice of the King's Bench remained vacant for several 
months. About the same time. Lord King, from severe 
indisposition, was obliged to resign the great seal, and 
the arrangements which, in consequence, became neces- 
sary, caused great perplexity. At last it was settled that 
Mr. Talbot, the Solicitor General, should be Lord Chan- 
cellor; and, in Michaelmas Term, Sir Philip Yorke, 
the Attorney, took his seat as Chief Justice of the King's 
Bench. 

I ought now to describe his wonderful course, from 
the time when being an attorney's gratis clerk he was 
sent to buy cabbages at the greengrocer's and oysters 
at the fishmonger's for an imperious mistress, till he be- 
came Lord High Chancellor, an earl, and the renowned 
framer of our equitable code ; but I have already, to the 
best of my ability, narrated his adventures, and drawn 
his character ; and, upon reflection, I see no reason to 
retract or to qualify any of the praise or of the censure 
which I had ventured to mete out to him.' 

' See Chalmers's Biographical Dictionary, " Lord Raymond ;" Kent's 
Commentaries, 488. 

' Lives of the Chancellors, vol. v. ch. cxxix.— cxxxvii. Since the 6rst 
edition of my book, a Life of Lord Hardwicke, by Mr. Harris, has been 
published, in which complaint is made of me as often as I have ventured Xs> 



1 73 7-] WILLIAM LEE. 

It was thought that he would end his days as a com-" 
mon law judge, like Hale, Holt, and many of his most 
illustrious predecessors ; but, after he had presided in 
the King's Bench little more than two years, Lord Tal- 
bot died suddenly, while still a young man ; and Lord 
Hardwicke, being transferred to the woolsack, fulfilled 
his illustrious destiny. 



Much difficulty was experienced in fixing upon a suc- 
cessor to him in the Court of King's Bench. From the 
earliest times, in each of the superior common law 
courts, a CHIEF had been constituted, vfith puisnies under 
him ; for, with a perfect equality of rank among all the 
judges, a constant struggle would be carried on among 
them for ascendency, the bar could not be duly kept in 
order, and the business would be thrown into confusion. 
But the full advantage of this arrangement can only be 
obtained when the Chief is superior to his brethren in 
talents and reputation. The condition of the court is 
very unseemly and inconvenient when the collar of S.S. 
is worn by one who feels that he does not deserve it, or 
who is considered by others inferior in authority to those 
who sit, undecorated, by his side. 

Lord Hardwicke, during the chancellorship of Lord 
Talbot, having been eclipsed in the House of Lords by 
the superior brilliance of that extraordinary man, was 
supposed to be anxious to avoid the annoyance of 
having another law lord as a rival. Some applied to 
him the magniloquent comparison that he would 
" Bear, like the Turk, no brother near his throne ;" 

and others in homely but expressive language, said " he 
was resolved to rule the roast."^ He therefore cast his 
mantle on SiR WILLIAM Lee, who had been one of his 
puisnies, who was of decent character and respectable 
qualifications, who had no pretensions to a peerage, and 
who could never in any way be formidable to a chancel- 
lor. Although this selection was suspected to proceed 

doubt the propriety of anything that our hero ever did, said, wrote, or 
thought. But the " faultless monster" whom this author describes bears a 
very partial resemblance to Lord Hardwicke. 

' Lond. Mag. 1737. He actually did rule the roast more than twenty 
years, sitting during all that time the only law lord in the House of Peers 



lOi WILLIAM LEE. [17 

fro; 1 selfish motives, there is some doubt whether, from 
the peculiar state of the bar at the time, a better could 
have been made : for there were serious objections to 
Willies, the Attorney General, on account of his profli- 
gate private life ; and Ryder, the Solicitor General, had 
as yet very little weight or legal reputation. The honors 
of the profession may be considered a lottery ; or if they 
are supposed to be played for, — in the game there is 
more of luck than of skill. At times, we see a super- 
fluity of men well qualified for high legal offices, while 
years roll on without a vacancy. At times, vacancies in- 
opportunely arise when they cannot be reputably filed 
up. Sir William Lee had never dreamed of being more 
than a puisne, till the hour when it was announced to 
him that he was Chief Justice of England. 

He and his brother Sir George, like the two Scotts, 
Lord Eldon and Stowell, had the rare felicity of pre- 
siding at the same time over the highest common law 
and civil law courts in this country ; for while Sir Wil- 
liam Lee was Chief Justice of England, Sir George Lee 
presided as Dean of the Arches and Judge of the Pre- 
rogative Court of Canterbury. They were the sons of Sir 
Thomas Lee, of Hartwell, in the county of Bucks, Bart. 
William, the younger, who was born in the year of 
the Revolution (168^, used often to say that " as he 
came in with King William, he was bound to be a good 
Whig." He might have been called " Singlejoke Lee," 
for although highly honorable and respectable, he was 
the dullest of the dull throughout the whole course of 
his' life ; and this oft-repeated pleasantry, with which 
he was in the habit of introducing his opinion on any 
controverted question of politics, was the only one which 
he was ever known to attempt or relish.' Great astonish- 
ment was expressed by most of those who knew him at 
college when it was announced that he was destined for 
the profession of the law, and predictions were uttered 
that he would starve in it. But an old gentleman who 
had been his tutor, and who knew' what was in him, 
said, " I shall not — but you who are young may — live to 
see him. Chief Justice of England, for to plodding and 

• According to this instance, Pope's line ought to have been 

" T<"or gentle dullness ever loves one joke." 



*7io-] WILLIAM LEE. 



103 



perseverance nothing is impossible." The dull and 
despised William Lee did plod, did persevere, and did 
become Chief Justice of England. 

In preparing for the bar, he mainly devoted himself 
to special pleading, in which he took great delight. He 
Tiever even had attempted to cross the "Ass's Bridge," 
so that he could not tell whether this would have proved 
an insuperable obstacle to his mathematical progress ; 
and, though well drilled in the rules of prosody, he 
utterly and for ever renounced classics as soon as he had 
taken his bachelor's degree at Oxford. Of modern 
literature he had not the slightest tincture. He felt no 
regret that he had lost an opportunity of being pre- 
sented to Dryden. Instead of writing a paper in the 
Spectator, like his contemporary and fellow law- 
student, Mr. Philip Yorke, he declared that he had 
never got further than the second number, where he was 
shocked " by the description of the idle Templar, who 
read Aristotle and Longinus, who knew the argument of 
each of the orations of Demosthenes and Tully, but not 
one case in the reports of our own courts, and whose 
hour of business was the time of the play, when, cross- 
ing Russell Court and having his periwig powdered at 
the barber's, he took his place in the pit of Drury Lane 
Theatre, exciting the ambition of the actors to please 
him." It cost Lee no effort of self-denial to abjure such 
unprofitable pursuits. As it were in the natural gratifi- 
cation of a natural instinct, he took to the Liber Placi- 
tandi; and, to fix it in his memory, he copied it over 
three times with his own hand. He luxuriated likewise 
in Coke's Entries ; and in pursuing Saunders's Reports 
he loved more to dwell upon the declarations, pleas, 
and replications, as there set out at full length, than the 
subsequent epigrammatic statements of the arguments 
and the decision which have gained to the author the 
title of "the Terence of Reporters." The fiction of 
••giving color" which had driven some very scrupulous 
pleaders from the bar, particularly charmed him ; and, 
considering the rules of law to be founded either on the 
eternal fitness of things or on the revealed will of God, 
■(a question on which, it appears in his Diary, he was ac- 
customed to dispute,) there was no dexterity sanctioned 



/04 WILL/AM LEE. [1718^ 

by these rules which he did not deem justifiable. At 
the same time he was an amiable, worthy man — 

. . . . " and if astute in aught, 
The love he had topleading was in fault." 

We need not wonder that his fame went forth among 
the attorneys, and that soon after he was called to the 
bar he was in considerable practice — as a fabricator of 
sham pleas, and an arguer of special demurrers. His 
name appears frequently in the Reports as counsel in 
special pleading cases ; but, though " to the manner 
born," I must confess my inability to explain these mys- 
teries to the profane. 

There are only two cases on other subjects in which 
he is recorded as having been counsel while he remained 
at the bar. The first is Rex v. Ivinghoe, which came 
from the quarter sessions of his native county, and in 
which the question was, " whether a settlement was- 
gained by a pauper who had been hired for a year by 
one master, and with the consent of his first master, 
served part of the year under another?" This was quite 
adapted to Lee's capacity, and he argued it as elabo- 
rately as if the rights and liberties of Englishmen had 
depended upon it. He succeeded, and was probably as 
much pleased with himself as Erskine on the acquittal 
of Hardy and Home Tooke, for he induced that great 
sessions lawyer Lord Chief Justice Pratt to say, " If I 
lend my servant to a neighbor for a week or any longer 
time, and he goes accordingly and does such work as my 
neighbor sets him about, yet all this while he is in my 
service, and may reasonably be said to be doing my 
business. Therefore, I take this to be a service for the 
whole year under the first contract, and the settlement 
is at Ivinghoe." ' 

Again, when the famous- appeal of murder was sued 
out against Bambridge and Corbett, the mode of pro- 
ceeding being almost obsolete, Lee, from his black-letter 
reputation, was employed to conduct it. The trial com- 
ing on, he addressed the jury at great length, and ex- 
erted himself very unscrupulously to obtain a convic- 
tion ; but he met with a signal defeat, which made him. 
' I Strange, 90. 



173° J WILLIAM LEE. 



105 



vow that in future he would have nothing to do with 
facts, and would stick to law alone." 

When in his 40th year — an age when ambition is said 
to rage with greatest fury — he was much annoyed by an 
offer to be brought into the House of Commons, by the 
interest of his family, for Chipping Wycombe, in Bucks. 
He long strenuously refused, but, being told that if he 
persisted in doing so the seat would be carried by the 
Tories, he succumbed, observing that, " as he came with 
King William, he was bound to be a good Whig." How- 
ever, we in vain look to see his name in the Parliament- 
ary History ; for while his brother George was a fre- 
quent and e^xcellent speaker, and so became one of the 
leaders of the Leicester House party, no human power 
would have induced William to make a speech, unless 
he might wear his wig and gown and hold a brief in his 
hand. Although he voted steadily with the govern- 
ment, he would never, even in the lobby or in private 
society, give any better reason for the line he took than 
that '■^ he came with King William, and he was bound to 
be a good Whig." 

The next offer which was made to him he accepted 
without hesitation, and he became a Puisne Judge of the 
King's Bench, — reaching the summit of his ambition, 
and better pleased than he could conceive himself to be 
by winning a battle equal to Blenheim, or writing a 
poem more esteemed than PARADISE LOST. It was sup- 
posed, and said, that he had been promoted because he 
had so steadily proclaimed and proved himself to be " a 
good Whig;" but politics had nothing to do with the 
appointment. Sir Robert Raymond, then Chief Justice 
ol the King's Bench, complained bitterly of the insuf- 
ficiency of his puisnies, particularly in the knowledge of 
special pleading, of which he himself, notwithstanding 
his general juridical acquirements, was by no means 
master ; and he made a particular application to Lord 
Chancellor King, that a vacancy which then occurred in 
the court might be filled up by Mr. Lee, who was more 
eminent in this line than any other man in the profes- 
sion. Being coifed, sworn in, and knighted, the new 
Judge took his seat in the Court of King's Bench on the 

15th of June, 1730. 

■ 17 St. Tr. 401. 



io6 WILLLIAM LEE. Vlll- 

He remained a Puisne Justice for seven years, under 
Lord Chief Justice Raymond arid Lord Chief Justice 
Hardwicke, and was found exceedingly useful to them 
and to the public. Having concentrated all the energies 
of a mind naturally strong, and quickened by dialectical 
exercise, on one department of one science, he had at- 
tained in it to an unexampled skill. Moreover, its rules 
and analogies having a very extensive influence over the 
whole body of our law and procedure, few points arose 
in the course of a term on which his opinion was not 
valuable. He gave it with much modesty and dis- 
cretion ; not seeking to expose the ignorance of his 
brethren, or to parade his own knowledge, but setting 
the Chief Justice right by a whisper, and inducing a by- 
stander to believe, when the judgment was given, that 
they had all perceived how it must be from the first, — 
insomuch that he was likened, by the knowing, to the 
helm which keeps the ship in her right course, without 
itself attracting any notice. 

Sir William Lee particularly gained the favor of Lord 
Hardwicke, and is called by Horace Walpole and other 
contemporary writers his " creature," his " tool," his 
" dependent," and his "shadow." Their great intimacy 
appears from Lord Hardwicke having employed Lee to 
assist him in bargaining for the estate in Gloucestershire 
from which he took his title, and to act as a trustee in 
his family settlements.' 

Lord Hardwicke, on becoming Chancellor, was se- 
verely blamed for rewarding such services by promoting 
a man well qualified for the subordinate station which he 
occupied, but wholly unfit to be Chief Justice of Eng- 
land, — who, in addition to being a good special pleader, 
should be an enlightened jurist, experienced in the ways 
of the world, well qualified to address a legislative as- 
sembly, a scholar, and a gentleman. 

No one can blame Sir William Lee for acceptirg the 
honor which was thrust upon him ; and, public expecta- 
tion being low, it was generally allowed that he acquitted 
himself very reputably. His intentions were ever most 
pure and upright ; his temper was well disciplined ; his 
manners were bland ; and, although it could not be said 

' Harris's Life of Lord Hardwicke, i. l88. 



«737-J WILLIAM LEE. 107 

that he took an enlarged view of any subject, or did 
much to improve our code, his decisions between the 
parties litigating before him were substantially just. 

On Monday, the 13th of June, being the fourth day of 
Trinity Term, 1737, he took the oaths and his seat as 
Lord Chief Justice in the Court of King's Bench. Sub- 
sequently to the Revolution, when judges actually did 
discharge their duty in an independent manner, they 
ceased to make any parading professions of their good 
intentions, and inaugural speeches had become obsolete. 
Lord Chief Justice Lee is said materially to have altered 
the opinion which the bar entertained, or at least ex- 
pressed, of his law, by retaining a French cook, and 
giving frequent rounds of good dinners with copious 
draughts of claret and champagne.' He likewise had a 
villa at Totteridge, which still belongs to his family, 
where he used to entertain professional parties very hos- 
pitably, and tell them how he came in with King Wil- 
liam. Dependents and flatterers clustered around him, 
and before he died he was praised as one of the greatest 
of Chief Justices. 

His fame may have increased from his having had the 
good word of the fair sex ; he certainly stood up 
for the rights of woman more strenuously than any 
English judge before or since his time. He had to de- 
cide " whether a female may by law serve the office of 
parish sexton ?" and " whether females were entitled to 
vote at the election of a sexton?" John Olive and 
Sarah Bly were candidates for the office of sexton in the 
parish of St. Botolph in the city of London. She had 
169 male votes and 40 female. He had 174 male votes 
and 22 female, and he was sworn in. The validity of 
the election coming on to be determined in the Court 
of King's Bench, the gentleman contended that all the 
votes for the lady were thrown away, as she was dis- 
qualified on account of her sex ; and at any rate that he 
had a majority of lawful votes, as the female votes on 
both sides must be struck off from the poll, a woman 
being no more entitled to vote for a sexton than for a 
member of parliament or for a coroner, which Lord Coke 

' He was in the habit of particularly praising the precept of Lord Burleigh 
to his son " to keep an orderly table !" by which he understood a table 
tovered with good dUlus set out in orderly fashion. 



io8 WILLIAM LEE. [1737. 

says " they may not do although they have freeholds 
and contribute to all public charges — even to the wages 
of knights of the shire, which are to be levied de commu- 
nitate comitatus." (4 Inst. 5 Reg. Brev. 192.) 

Lee, C. y. : " I am clearly of opinion that a woman 
may be sexton of a parish. Women have held much 
higher offices, and, indeed, almost all the offices of the 
kingdom ; as Queen, Marshal, Great Chamberlain, Great 
Constable, Champion of England, Commissioner of 
Sewers, Keeper of a Prison, and Returning Officer for 
members of parliament.'" 2. As to the second point, 
it would be strange if a woman may herself fill the 
office, and yet should be disqualified to vote for it. 
The election of members of parliament and of coroner 
stands on special grounds. No woman has ever sat in 
parliament or voted for members of parliament, and we 
must presume that when the franchise was first created 
it was confined to the male sex. There was no reason 
for such a restriction respecting the office bf sexton, 
whose duties do not concern the morals of the living, but 
the interment of the dead. The female votes being add- 
ed to the poll, Sarah Bly has the majority, so that she, 
and not John Olive, is now the lawful sexton of this 
parish." 

The Puisnies concurring, judgment was given in her 
favor.' 

I do not find any other cases which came before him 
in the King's Bench so fully reported, but, from short 
notes in Strange, we find that he decided several im- 
portant points — as that " it is a misdemeanor to take a 
young lady out of the care of a guardian appointed by 
the Court of Chancery, and to marry her, although she 
goes away voluntarily ;'" that " it is a misdemeanor to 
keep g'jnpowder where it may be dangerous to the 
King's subjects;"* that " it is actionable to say of a jus- 

' Spelman's Glossary, 497 ; 3 Keble, 32 ; Blunt's Tenures, 47 ; Dyer, 285 
Hob. 148 ; Brady's History of Boroughs. Lady Packington was relieving 
officer at Aylesbury ; and the famous Countess of Pembroke, being hered- 
itary sheriff of Westmoreland, attended the judges in that capacity at the 
assizes. 

* 2 Str. 1 1 14. Same Case, MS. Taking the converse of i Lee's rule, a 
woman may be a Director of the East India Company, as she is entitled to 
vote for that office. 

' Hex V. Lord Ossulston, 2 Str. 1107. * Rex v. Taylor, ib. 1 167 



»746.1 WILLIAM LEE. 



109 



tice of the peace, in the execution of his office, that 
■he is a rogue ;'" that " at common law a factor, although 
•empowered to sell, cannot pledge the goods consigned 
to his care ;'" that " if a ship, insured in time of war 
against all perils except capture, sails on the voyage and 
is never heard of, it shall be presumed that she found- 
ered at sea, so as to make the underwriters liable ;"' that 
" an action lies for keeping a dog, known by his master 
to be accustomed to bite men, whereby the plaintiff 
was bitten, although the damage arose from the plaintiff 
having accidentally trod upon the dog's toes ;"* and 
" that a pardon being pleaded to an indictment for m'lr- 
■der, after a special verdict found, the pris9ner is entitled 
to be discharged without finding sureties to abide an 
appeal by the heir of the deceased."' 

Lord Chief Justice Lee presided at the special com- 
mission which sat for the trial of those who Tiad taken 
part in the rebellion of 1745. Under an act of parlia- 
ment which authorized the Government to prosecute 
them in any county in England, a Court, attended by all 
the Judges, assembled at St. Margaret's Hill, in the 
borough of Southwark. Most of those who were to be 
tried had been engaged in the siege of Carlisle, and had 
surrendered to the Duke of Cumberland, The charge 
to the grand jury was given by Lee, who fully explained 
to them how they, in Surrey, came to have cognizance 
■of offenses committed in a distant part of the kingdom, 
and laid down to them very distinctly the doctrine of 
•compassing the King's death and of levying war against 
him. 

The indictments found against the Earls of Kil- 
marnock and Cromartie, and Lord Balmerino, were im- 
mediately removed by certiorari to the House of Peers, 
— but those against commoners were proceeded with be- 
fore Surrey juries as expeditiously as the forms of law 
would permit. 

The first case taken was that of Colonel Francis 
Townley, the representative of an ancient family in 
Lancashire, who, entering the French service, had dis- 

' Kent V. Pocock, 2 Str. 116S. ' Patterson v. Task, ib. 1 1 78. 

' Green v. Brown, ib. 1 199. * Smith v. Fc'ack, ib. 1264. 

■» Sex V. Chetwynd, 18 St. Tr. 2S9. 



no WILLIAM LEE. [1746. 

tinguished himself much at the siege of Philipsburgh, 
and on various other occasions, and who still held a com- 
mission from the King of France when he joined the 
army of the Pretender. He set up two defenses. The 
first was, that he ought to be treated as a prisoner of 
war and not as a traitor, for he had acted under the au- 
thority of a foreign sovereign, who was making open 
war against the Crown of Great Britain, — therefore, in- 
stead of being executed for high treason, he was entitled 
to be exchanged under the cartel lately established be- 
tween the two countries, according to the usages of 
honorable hostilities. 2dly. At all events, if he were 
still liable to be treated as an English subject, he claimed 
the benefit of the articles of the capitulation of Carlisle, 
signed by the Duke of Cumberland, engaging that, on 
the surren,der of the city, the prisoners taken in arms 
" shall not be put to the sword, but be reserved for the 
King's pleasure," — amounting, as he contended, to a 
solemn pledge that their lives should be spared, and, 
therefore, barring any capital proceedings against them. 
Lee, C. J. : " Neither defense can avail : — i. The pris- 
oner is a native-born subject of this realm, and cannot 
free himself from the allegiance which he owes to his 
own sovereign by entering into the service of a foreign 
state. Our law says. Nemo potest exuere patriam. The 
very fact relied upon that the prisoner is in the service 
of France, a country with which we are now at war, is an 
adherence to the King's enemies, and an overt act of high 
treason. 2. The second defense we could give no effect 
to here, and it could only be made the foundation of an 
appeal to the Crown to withdraw a prosecution which 
ought not to have been instituted ; but, as it has been 
brought forward, I think I am bound to say that, in my 
opinion, there is no foundation for it in reason, justice, 
or honor. The only fair meaning of the words relied 
upon is, that the prisoners should not immediately be 
put to death by martial law as rebels taken in arms, but 
should have the benefit of a fair trial according to oui 
humane forms of procedure before the Judges of the 
land." ' 

' A mighty small benefit, certainly, as, if tried for treason they could not 
have the remotest chance of escape, and it would have been better for them 



1746] WILLIAM LEE. u, 

The prisoner was, of course, found guilty; and, to 
show the customs and feelings of Englishmen in the 
middle of the last century, I add a short contempora- 
neous account of his execution, which was read then 
without any wonder or any disapprobation : " After he 
had hung six minutes he was cut down, and, having life 
in him as he lay upon the block, to be quartered, the ex- 
ecutioner gave him several blows on his breast, which 
not having the effect designed, he immediately cut his 
throat ; after which he took his head off; then ripped 
him open, and took out his bowels and heart, and threw 
them into a fire, which consumed them ; then he slashed 
his four quarters, and put them with the head into a 
coffin, and they were carried to the new jail in Southark, 
where they were deposited till August 2, when his head 
was put upon Temple Bar, and his body and limbs suf- 
fered to be buried." Chief Justice Lee, and five other 
Judges, in the discharge of their duty signed the war- 
rant by which these revolting cruelties were authorized.' 

The next trial in which any question of law arose was 
that oi Alexander McGrowtlier, a lieutenant in the Duke 
of Perth's regiment, which had formed a part of the 
Pretender's army. The prisoner stated, by way of de- 
fense, " that he was a vassal of the Duke of Perth ; that 
he was bound to obey the orders of his superior ; that, 
nevertheless, having refused to do so, the Duke of Perth 
had threatened to burn his house to the ground, and to 
lay waste all that belonged -to him, if he would not enter 
into the rebellion." He accordingly called four wit- 
nesses, who deposed to those threats, adding " that the 
Duke's men had begun to bind him with cords before he 
enlisted ; that he yielded, to save himself from ruin ; 
and that by the custom of the country the vassal is con- 
sidered bound to execute the orders of his superior, 
whatever they may be." 

Lee, C. J.: "We cannot hear of any such custom. 
The king's subjects owe allegiance to the King alone, 
and are bound only to obey the law. There is not, nor 
ever was, any tenure which obliges tenants to follow 

to have been shot, than hanged, emboweled while yet alive, beheaded, and 
quartered. 

' 18 St. Tr. 329-352- 



112 WILLIAM LEE [1746. 

their lords into rebellion. And as to the matter of 
force, the fear of having houses burnt or goods spoiled, 
or a slight injury to the person, is no excuse in the eye 
of the law for joining and marching with rebels. The 
only force that excuses is, a force leading to present fear 
of death, and this force and fear must continue all the 
time the party remains with the rebels. It is incumbent 
on every man who makes force his defense, to show an 
actual overruling force, and that he quitted the service 
of the rebels as soon as he could, — according to the rule 
laid down in Oldcastle's Case, i Hale, 50, that the pris 
oner joined pro timore mortis et recessit quam cito potuit. 
But here the prisoner pretends to prove force only on 
the 8th of August, and he continued with the rebels and 
bore a commission in their army till the surrender of 
Carlisle on the 30th of December. 

The jury, without going from the bar, found a verdict 
of guilty. This prisoner, however, was reprieved, and 
afterwards pardoned.' 

Alexander Kinloch and Charles Kinloch having 
pleaded not guilty, — after their trial upon this plea had 
begun, insisted that they were entitled to be acquitted, 
because they were native-born Scotchmen, and by the 
articles of union between Scotland and England, Scot- 
land was to retain her own laws, so that they ought to 
be tried by the Court of Justiciary in Scotland. The 
Judges ruled that this objection, if well founded, could 
only be taken advantage of by plea in abatement to the 
jurisdiction of the Court; and, in favor of life, they 
allowed the jury to be discharged, the plea of not guilty 
to be withdrawn, and the plea in abatement to be sub- 
stituted for it. To this the Attorney General demurred, 
and the point was argued at great length : — 

Lee, C. J. : " We are all of opinion that the birth, resi- 
dence and apprehension of the prisoners in Scotland are 

' Foster says,—" Many of the Scotch prisoners made the like defense, 
and the same directions in point of law were given. The matter of fact, 
whether force or no force and how long that force continued, with every 
circumstance tending to show the practicability or impracticability of an 
escape, was left to the jury on the whole evidence." (Foster, ch. ii. s 8 • 
East's Pleas of the Crown, ch. ii. s. 15 ; 18 St. Tr. 391-394.) See like« ise 
the trial of Fergus Mclvor and Evan Dhu McCombick, which took place 
at Carlisle a few weeks after. (3 Waverly, 300.) 



t> 



1746.] WILLIAM LEE. 



"3 



facts perfectly immaterial in the present case. So it 
would have been even at common law ; for at common 
law every man is triable, not where he was born, resided, 
or was apprehended, but where the offense is commit- 
ted. Moreover we are now sitting under a special act 
of parliament which gives us jurisdiction in all treasons 
%vithout any distinction of persons or localities." 

The plea in abatement being overruled, the prisoners 
again pleaded not guilty : and, being tried by another 
jury, were convicted on clear evidence, for they had 
taken a very active part in the Pretender's invasion of 
England. But they moved, in arrest of judgment, that 
the conviction was unlawful, as the Court had no power, 
even with their consent, and at their request, to dis- 
charge the first jury; and that being once given in 
charge to that jury, they could not lawfully be tried by 
any other. When the question was argued before the 
twelve Judges, the counsel for the prisoners gave in- 
stances in which the assumed power of discharging the 
jury, after the commencement of the trial, had been 
abused to the oppression of the subject ; and relied upon 
a dictum of Lord Holt, that " in criminal cases a juror 
cannot be withdrawn but by consent, and in capital cases 
it cannot be done even with consent." 

Lee, C. J. : " With the exception of my brother Wright, 
we are all of opinion that the conviction is regular, and 
that sentence of death must be passed upon the pris- 
oners. The rule that a trial once begun must proceed 
to a conclusion before the same jury, cannot bind in 
cases where it would be productive of manifest injustice 
or great hardship to the prisoner. In the present case, 
the objection urged by the prisoners of our want of 
jurisdiction might have turned out to have been well 
founded ; but it could not have been taken advantage 
of under the plea of not guilty. Liberty was therefore 
given to them to withdraw that plea. When withdrawn, 
the jury had no issue to try, and must therefore of course 
be discharged. Consequently they have no right to 
complain of that which was a necessary consequence of 
an indulgence shown them by the Court. The authority 
of Lord Holt is high ; but Lord Hale says, ' In case a 
man in a frensy happened by some oversight to plead 



114 ROBERT RAYMOND. [1747. 

to his indictment, and put himself upon his trial, and it 
appeareth to the Court upon his trial that he is mad, the 
judge in discretion may discharge the jury, and remit 
him to jail, to be tried after the recovery of his under- 
standing.' " Wright, J. : " I admit that the discharging 
of the jury in the present case was an instance of great 
indulgence to the prisoners ; but I think it is safer to 
adhere to a general rule, than on any account to estab- 
lish a power in judges which has been grossly abused 
and may be again. The policy of the law of England, 
and, indeed, the true principles of all government, will 
rather suffer many private inconveniences than introduce 
one public mischief. I consider the trial by the same 
jury which is sworn and charged with the prisoner as 
part of l^iQ jus publicum, as a sacred depositum committed 
to the judges which they ought to deliver down inviolate 
to posterity." 

The usual sentence in the case of high treason was 
accordingly passed upon the prisoners, but the difference 
of opinion in the Court saved their lives, and they were 
pardoned on condition of being sent abroad.' 

The last trial under the special commission was that 
of Sir John Wedderburn. The government had resolved 
to make ah example of a non-combatant, and indicted 
him for high treason, although he had not mounted the 
white cockade, and he never carried any arms but a 
small sword then worn by every private gentleman. But 
it was proved that he had accepted the appointment, 
under the Pretender, of collector of excise, and that ac- 
cordingly he did collect the excise in several places 
where the rebel army lay. His counsel objected that 
this evidence did not support the indictment ; but Lord 
Chief Justice Lee declared the opinion of all the Judges, 
that collecting money for rebels is an overt act of high 
treason. The prisoner was convicted, and executed as 
a traitor on Kennington Common." 

When the rebel peers were tried before the House of 
Lords, Chief Justice Lee and the other Judges attended 

' iS St. Tr. 395-416. 

" Ibid. 425. When a boy I knew his son, who was called Sir John Wed- 
derburn, although the baronetcy had been forfeited by the attainder He 
too had been " out in the '45," and he told very marvelojs stories of his 
ad »enf ures. 



1 752-] WILLIAM LEE. 115 

as assessors, but only one point of law was referred to 
them, — " whether the dates given to the overt acts of 
treason in the indictment were material? — and Lee, as 
the organ of his brethren, explained to the astonished 
Scotch this mystery of the English procedure, that 
"time and place must be laid in the indictment with 
certainty, but that evidence may be admitted to prove 
the offense to have been committed at any other time 
or any other place within the same county.'" 

Lord Chief Justice Lee, notwithstanding his de- 
fective elocution and very limited acquirements, got on 
pretty well in the discharge of the duties of his high 
office, till he broke down in the trial of a prosecution 
for libel ordered by the House of Commons ; after which 
he lost all authority, and experienced constant mortifi- 
cation. William Owen, a bookseller, having published a 
pamphlet which severely and justly censured the con- 
duct of the House of Commons in committing to New- 
gate the Honorable Alexander Murray because he re- 
fused to fall down on his knees before them, an address 
to the Crown was carried, with a foolish unanimity, that 
the Attorney General should be directed to prosecute 
the publisher. Sir Dudley Ryder accordingly filed a 
criminal information against Owen, and, at the trial, in- 
sisted that he was entitled to a verdict of guilty on 
merely proving that a copy of the pamphlet had been 
sold by the defendant. But he was encountered by 
Pratt (son of the Chief, and afterwards Lord Camden), 
who strenuously insisted that as, in an indictment for an 
assault with intent to ravish, the intention must be 
proved, or there must be an acquittal, so here the jury 
must consider whether the intention of the writer was to 
defame the representatives of the people, or, by ex- 
posing and correcting their errors, to render them more 
respectable and useful ? 

The Chief Justice was much shocked by this doctrine., 
but he had not the art which enabled Lord Raymond to 
combat it successfully, and which was afterwards ex- 
hibited more strikingly by Lord Mansfield against the 
publishers of JUNIUS. In summing up, without at- 
tempting to take off the effect of the popular arguments 
» 18 St. Tr. 442-S5S. 



ii6 WILLIAM LEE. [i753- 

urged for the defendant, he drily said, " The publication 
of the pamphlet being thus proved, and, indeed, not 
being denied by the defendant, I am of opinion that 
you are bound to find him guilty. I have ever sup- 
ported the principles of liberty established at the Rev- 
olution, but I must keep juries to questions of fact.' 
Whether the pamphlet be a libel, is matter of law ; if it 
be not, the defendant might have demurred to the in- 
formation, or may, after your verdict of guilty, move an 
arrest of judgment or bring a writ of error." The jury 
withdrew, and when they returned, after having been 
absent two hours, the following scene was enacted : — 

Clerk of the Court : "Gentlemen of the jury, are you 
agreed on your verdict ? Is the defendant guilty or not 
guilty?" Foreman: "Guilty!" Chief Justice : "You 
could not do otherwise." Jurymen : " No ! no ! my 
Lord ! it is all a n^istake, — we say NOT GuiLTY." Fore- 
man : " Yes, my Lord, it was a mistake ; I meant to 
say Not Guilty." Bystanders: "Huzza! Huzza!! 
Huzza!!!" Attorney General : "My Lord, this must 
not be ; I insist on the jury being called back and asked 
their opinion Mpon the only question submitted to 
them." Chief Justice : " Gentlemen of the jury, do you 
think the evidence laid before you of Owen's publishing 
the book by selling it is not sufficient to convince you 
that the said Owen did sell this book?" Foreman: 
" Not Guilty! my Lord, Not Guilty!" Juryman: 
"Yes, my Lord, that is our verdict, and so we say all." 
The rest of the Jury : " So we say all, so we say all." 

There was a prodigious shout of applause in Guild- 
hall, and at night there were bonfires in the streets to 
celebrate the triumph over an unpopular House of Com- 
mons." 

A degree of ridicule was now attached to Lee's name, 
and he found his position very uncomfortable ; for not 
only would juries often find verdicts contrary to his 
direction, but the bar paid little deference to him, and 
even his puisnies were too apt to show that they con- 
sidered themselves his betters. 

' I am surprised he did not inform them that " he came in with King 
William, and therefore had always been a good Whig." 
' l3 .St. Tr. 1203 ; post, Life of Sir Dudley Ryder. . 



I754-J WILLIAM LEE. 117 

Some legal chroniclers, not familiar with official 
usages, have said that under these circumstances, like 
his predecessors in the reigns of Charles I. and James I., 
he meant to quit law for politics, and that he accepted 
the office of Chancellor of the Exchequer. This fact is 
literally true. The seals of Chancellor of the Exchequer 
were indeed handed over to him on the 3d of March, 
1754, and they remained in his possession till within a 
few days of his death. He was appointed, however, 
only under the immemorial custom that when the office 
of Chancellor of the Exchequer suddenly becomes 
vacant, and a difficulty arises about effectively filling it 
up, it is nominally held ad interim by the Chief Justice 
of the King's Bench for the time being, who does the 
formal acts necessary for the progress of business in the 
Exchequer. On the sudden death of Mr. Pelham, Lord 
Chief Justice Lee held the seals of Chancellor of the 
Exchequer till the nomination of Mr. Legge; but in this 
capacity he never did anything more than sign his name 
or seal a writ, and the Duke of Newcastle had as little 
thought of introducing him into the new Cabinet as of 
making him Archbishop of Canterbury.' 

The time was at hand when Lee was to be freed from 
the irksomeness of his position by being transferred to a 
better world. His health and spirits having been some 
time declining, on the evening of Wednesday, the 3rd 
of April, 1754, he was struck with apoplexy, and, early 
in the morning of Monday, the 8th of the same month, 
he expired, in the sixty-sixth year of his age, and the 
seventeenth of his Chief Justiceship. He was buried at 
Hartwell, where a handsome monument has been erected 
to his memory. 

There have been recently given to the world very 
copious extracts from a sort of diary that he kept, under 
the title of "Miscellanea," and from entries made by 
him. in a succession of almanacs which he carefully 
preserved ;" but these are perused with much disap- 

' One learned author has even suggested that the fact of Lee " filling the 
office of Chancellor of the Exchequer as well as of Chief Justice might have 
been the reason of his remaining a Commoner ;" — as if he had been in the 
habit of opening the Budget in the House of Commons. (Harris's Life of 
Lord Hardwicke, iii. 517.) 

' Law Magazine, xxxviii. 217, xxxix. 62. 



iiS WILLIAM LEE. [1754, 

pointment. They might have contained some lively 
sketches of his own adventures, and some amusing anec- 
dotes of his contemporaries, although we could not have 
expected in them much profundity of thought or bril- 
liancy of fancy ; but they consist chiefly of legal an- 
tiquities with which almost every one is quite familiar, 
and of dull observations on dull books which he 
had read.' He seems to have been a believer in 
the old theory of medicine founded on radical heat 
and radical moisture, and to have paid great atten- 
tion to the directions of almanac-makers respecting 
diet and blood-letting. Thus he says, under date "Oc- 
tober, 1737. — Dr. Cheney told me that the Bath waters 
were the best remedy he knew for the stomach, or for 
vapors arising from too great coldness of blood : and 
wherever there was not sufficient calidum naturale, he 
knew no outward help equal to them. He laid down 
the rule that to hot blood cooling waters should be ap- 
plied." His almanac was " Rider's British Merlin, 
adorned with many delightful and useful verities, fitting 
all capacities in the islands of Great Britain's monarchy ; 
with notes of husbandry, &c. Compiled, for his country's 
benefit, by Cardanus Rider." The following very whole- 
some precepts of this sage were particularly valued by 
the Chief Justice: — "It's hurtful to fast' long. Use 
meats that are moderately hot ; for the best physic is 
warm diet, warm clothes, and a merry, honest wife. 
Consult with your tailors as well as physicians. Let a 
warm fire, and a cup of generous wine or good October 
beer, be thy bath ; the kitchen thy apothecary's shop ; 
hot meats, and broth, thy physic; and a well-spread 
table the proof of thy charity to thy poor neighbor." 

Notwithstanding all these precautions, he was very 
nearly cut off when attending the Old Bailey sessions, in 
May, 1750. The jail fever then raged in Newgate, as in 

' There are some historical notices likewise, showing that my Lord Chief 
Justice was very little acquainted with events which had happened before 
his own birth and the coming in of King William : e. g,, "It appears by 
the letters of D'Estrade that Lord Clarendon advised the sale of Dunkirk, 
and that Lord Clarendon was also extremely averse to the Presbyterians, 
who by that history appear to have behaved very well, and to have been for 
the Restoration." He thinks it was unknown, before the publication of 
these letters, that Lord Clarendon had anything to do with the sale of Dun- 
kirk, or behaved with ingratitude and bad faith to the Presbyterians. 



»7S4-J WILLIAM LEE. 



119 



other prisons, and (what was no uncommon occurrence 
in those times) it was communicated by the prisoners 
brought into court for trial, to the judges, the jurymen, 
and the witnesses. He escaped, though exposed to the 
contagion ; but Mr. Justice Abney, and many others, 
perished. He made a sharp remonstrance to the Lord 
Mayor and aldermen of London, and preventives were 
introduced which are still kept up at the Old Bailey- 
such as fumigating the court several times a day by 
means of a hot iron plunged in a bucket filled with vine- 
gar and sweet-smelling herbs.' 

Valuing above all things " a merry, honest wife," soon 
after he had lost his first — Anne, daughter of John 
Goodwin, Esq., of Burley, in the county of Suffolk, — he 
married, secondly, Margaret, daughter of Roger Drake, 
Esq., and relict of James Melmoth, Esq., v^Jio, on the 
authority of Lord Hardwicke, was " an agreeable lady, 
with ;^25,ooo fortune."" But he himself records this 
■event with wonderful brevity, for, in his almanac for 
1733) after writing "Six bushels of oats for four horses 
per week; hempseed good in their corn; walking them 
in the dewy grass in the morning, very good: for rheu- 
matism, elder tea," — he only adds these words: "I 
MARRYED TO Mrs. M. M." (meaning Mrs. Margaret Mel- 
moth). He lived happily with her till May, 1752: but 
he makes no further mention of her, living or dead. 

It may alarm some who complacently exult in their 
present consequence, and confidently calculate on enjoy- 
ing a lasting reputation, to know that Chief Justice Lee 
not only considered himself, but was considered by many 
in his own day, to be a great man. He was frequently 
a dedicatee, and the dedicators ascribed to him every 
virtue under heaven. Even after his death, when he 
could no longer give away masterships or clerkships, nor 
encourage nor frighten young barristers by his smile or 
frown, thus wrote Sir James Burrow — a very able man, 
afterwards the reporter of Mansfield : — 

" He was a gentleman of most unblemished and irre 
proachable character, both in public and in private life 
amiable and gentle in his disposition ; affable and court 

' Gentleman's Magazine, xx. 333. 

' Harris's Life of Lord Hardwicke, i. 233. 



I20 WILLIAM LEE. [1754. 

eous in his deportment ; cheerful in his temper, though 
grave in his aspect ; generous and poHte in his manner 
of living ; sincere and deservedly happy in his friend- 
ships and family connections ; and to the highest degree 
upright and impartial in the distribution of justice. He 
had been a Judge of the Court of King's Bench almost 
twenty-four years ; and for near seventeen had presided 
in it. In this state the integrity of his heart and the 
caution of his determination were so eminent, that they 
probably never will, perhaps never can be, excelled."' 

Sir James has been laughed at for concluding with 
this anti-climax: — "He was peculiarly master of that 
sort of knowledge which respects the settlement of the 
poor;" but I doubt very much whether the legal hero 
thus extolled would not himself have been gratified by 
the panegyric. 

Lord Chief Justice Lee is now represented by his 
great-grandson, the very learned civilian. Dr. Lee, who 
has inherited Hartwell and the other large estates of his 
family." 

' Burrow's Settlement Cases, p. 328, 4to. 1768. 

" Since I finished the above little memoir, by the kindness of Dr. Lee 
(for which I am most grateful) I have had an opportunity of perusing all 
the Chief Justice's MSB., amounting to above IQO volumes ; but I have 
been unable to extract any thing from them for the instruction or amuse- 
ment of the reader. They prove the extraordinary industiy of the com- 
piler during the whole course of his long life. His common-place book is 
stupendous, and he had digested reports of an immense number of cases 
decided while he was a student and at the bar. Beyond his own profession he 
appears to have had some taste for metaphysics, and he copies passages from. 
Locke, Hobbes, and Bishop Berkeley ; but in the whole mass I can find 
nothing original, either grave or gay. His note-books from the time h-i was 
made a judge, both in civil and criminal trials, are extant without any in- 
cident being recorded in them, or any remark being made on the counsel 
who pleaded before him. None of the letters he received are preser,-ed, 
and there is the draught of only one letter written by him. This was td 
Lord Hardwicke, and describes the writer's growing infirmities: — "As to 
ray present state of health," says he, "it is but low, and I cannot walk at 
all without help. What my future condition will be, God only knows. Bui 
as long a-, I exist I trust and hope the consciousness I have of your Lord- 
ship's juugment and integrity will remain ; and may your counsels long, 
veiy long, flourish, is the most sincere wish of your Lpordship's most humbli 
servant, W. Leb." 



CHAPTER XXVII. 
LIFE OF CHIEF JUSTICE RYDER. 

I HAVE one other dull Chief Justice of the King's 
Bench to take in hand, but I am comforted by the 
recollection that he was immediately succeeded by 
the most accomplished Common Law Judge who pre- 
sided in Westminster Hall during the eighteenth cen- 
tury. Although Sir Dudley Ryder was eminent in 
his profession, as well as a man of spotless character, his 
career was without any stirring incidents ; he was not 
distinguished either in literature or politics, and his inti- 
macies were chiefly with men as insipid as laimself. Un- 
luckily for his biographer, he not only never excited 
much admiration in public life, but he did no act de- 
serving of severe censure, and nothing dishonorable was 
even imputed to him. Yet I cannot pass over in silence 
a man who filled the important office of Attorney Gen- 
eral much longer than any of his predecessors or suc- 
cessors, who was for many years the colleague of Mans- 
field, who ranks among the Chief Justices of England, 
whose patent of peerage was signed when he was sud- 
denly snatched away, and whose death produced a very 
memorable crisis in the party history of our country. 

The Ryders are all said to be descended from the an- 
cient family of Rythre, which was seated for many ages 
at Rythre, in the hundred of Barkston, in the county of 
York ; but the line we are considering cannot be dis- 
tinctly traced higher than the Reverend Dudley Rider, 
who, in the beginning of the seventeenth century, was a 
nonconformist minister at Bedworth, in the county of 
Warw^ick. Although a zealous Puritan, he was not with- 
out worldly ambition ; and he prophesied that in his de- 
scendants the name of Ryder would recover and exceed 
its ancient splendor. He did not live to see the fulfill- 



122 DUDLEY RYDER. [1691— 

ment of this prophecy, but one of his grandsons was 
Archbishop of Armagh, and ano-ther was Chief Justice 
of England. In the first generation after him there was 
no appearance of such an elevation, for his two sons, 
John and Richard, were both tradesmen. John, the 
father of the Irish Primate, kept a haberdasher's shop at 
Nuneaton, in Warwickshire. Richard, the father of the 
Chief Justice, was a mercer in West Smithfield, in the 
city of London. A love of learning, however, was still 
hereditary in the family; the Reverend Dudley's library 
was divided among his descendants, and they were re- 
markable for intelligence as well as sobriety of manners. 
Sir Dudley, whose career we are now to follow, was 
the second son of the mercer, and was born in the year 
1691. He is the first Englishman I read of who laid the 
foundation of future eminence at a Scotch University; 
being in due time to be followed by an illustrious band 
of successors, including Lord Melbourne and Lord John 
Russell. After a tolerably good school education at a 
dissenting academy at Hackney, he studied some years 
at Edinburgh, which was then rising into celebrity from 
the eminence of its professors. Being destined to the 
profession of the law, he followed the custom, which he 
found then almost universal among Scotchmen who were 
to pass as advocates, of going to Leyden to be initiated 
in the Roman civil law. Both there and at Edinburgh 
he enjoyed the opportunity, which was still much prized . 
by his family, of having the Gospel preached and its 
rites administered in true Genevese presbyterian purity. 
When mixing in after-life with those who had been bred 
at the English public schools and the English universi- 
ties, and who were perpetually talking of these semina- 
ries as if there were no valuable knowledge to be ac- 
quired elsewhere in the world, he sometimes regretted, 
for the sake of being on an equal footing with them in 
conversation, that he had not fagged or been fagged by 
some of them at Eton, nor joined in their boasted bac- 
chanalian exploits at Oxford ; but he felt that he had 
amassed a greater stock of valuable knowledge than most 
of them, and that, having lived with those who like him- 
self were a little pinched by penury, he -had acquired 
habits of reflection, of self-denial, and of persevering 



C725.J DUDLEY RYDER. 123 

industry, which would enable him to outstrip those who 
for the present superciliously affected a superiority over 
him. 

After entering as a student at the Temple, nctwith- 
standing his high veneration for the memory of his 
grandfather, the Puritan pastor, he joined in communion 
with the Episcopalians, being of opinion that forms of 
ecclesiastical government were left by our Blessed Sa- 
viour to be adapted to the exigencies of different socie- 
ties, and that the enlightened and tolerant Church of 
England, respected and beloved by the great majority of 
the inhabitants of this country, was then to be preferred 
to the Presbyterian persuasion, which had fallen off both 
from the orthodoxy and the learning which had distin 
guished it in the times of Calamy and Baxter.' 

Having been called to the bar by the Society of the 
Middle Temple,, he soon afterwards transferred himself 
to Lincoln's Inn. In due time he was elected a Benche' 
and Treasurer of this Society, and he became much at- 
tached to it." Although from his first start he was 
always advancing, so noiseless was the tenor of his way 
that we read little more respecting him till he was about 
to be appointed a law officer of the Crown. His rise was 
chiefly to be ascribed to the friendship of Lord King, 
who, like him, was the son of a tradesman, had studied 
at Leyden, had been brought up among Dissenters, and, 
taking to the profession of the law, had conformed to 
the Established Church. By this powerful patron he 
was introduced to Sir Robert Walpole, who had the sa- 
gacity to discover his serviceable merit, and resolved to 
employ him. 

Accordingly, in the move which took place on the 
promotion of Talbot and Yorke to the Chancellor and 
Chief Justice of the King's Bench, Ryder was made So- 
licitor General. 

I do not recollect any lawyer of great eminence whose 

' The English Presbyterians were then passing through Arianism to the 
Socinianism or Rationalism, which they reached about the middle of the 

l8th century. , 3 -^^ j r 

* It appears from the books of Lincoln's Inn, tnat he was admitted of 
that Society, Jan. 26, 1725 ; invited to the Bench, Jan. 23, 1733 ; elected 
Treasurer, Nov. 28, 1734 ; and made Master of the Library, Nov 28, 1735 
The last council he attended was on Feb. 12, 1754. 



r24 DUDLEY RYDER. 

early career presents such a blank. There is no tradition 
of any great speech by which he forced himself into 
business, or of any vicissitudes of good or evil fortune 
which he experienced. Even when promoted to his 
present office, we know little of his companions or of 
his mode of life. One friendship he had, with Mr. Bowes, 
a brother barrister, who, having accompanied West, the 
Irish Chancellor, as secretary, was called to the bar in 
Ireland, and, having been successively Solicitor General, 
Attorney General, and Chief Baron in that island, at last 
himself became Irish Chancellor and an Irish Peer. A 
constant epistolary correspondence was kept up between 
them. Bowes's letters are preserved, and some of them 
are very curious. The first which I select was written 
soon after his arrival, and gives an amusing account of 
the manners of Dublin — a city which was then as distant 
from London as New York now is. A lawyer is particu- 
larly struck by perceiving that, for advancing a favorite, 
practices were formerly permitted in our profession 
which with us would be reprobated, and which, if at- 
tempted, would be very injurious to the person intended 
to be benefited.' 

" Dublin, Oct. 9, 1725. 

" Dear Sir, — It is four weeks since I arrived here, in 
which time you might expect a tolerable account of the 
success of my project ; but, in fact, I am as incapable of 
forming a judgment on that head as when I first came 
on shore. 

" When I tell you the people here are French in ail 
respects but their language, you will admit that I ought 
not to depend on general civilities. In England a man 
might flatter himself with success from a like reception, 
but here time only can disclose the event of this under- 
taking. I am, indeed, retained in upwards of twenty 
causes, the fees of which I have placed on the debtor side 
of my account with the Chancellor, for I consider them 
as compliments paid to him, and as to myself hope they 
will prove the means of showing me in business. Though 
I cannot appear in business till I am called to this bar, 

' If it be discovered that letters have been circulated soliciting briefs for 
a. beginner on his first circuit, he is sentenced to silence during the whole o* 
that circuit, without any evidence oi complicity. 



DUDLEY RYDER. 125 

yet I constantly attend the seals, which are here opened 
every Thursday during the vacation, at which time the 
Chancellor answers petitions in public, and in that man- 
ner dispatches the ordinary motion business of the Court 
{a method introduced for the benefit of the secretary). 
However, counsel are feed in all matters of consequence, 
by which means I have already heard most of their 
great men, who I can assure you, excepting one or two, 
would not appear so in England ; but I will not as yet 
pretend to give the history of the profession in this 
kingdom, though I believe it may hereafter furnish mat- 
ter for a very entertaining letter. 

" The Chancellor omits no opportunity to apprise the 
people here of his friendship for me, and by his means 
I have received civilities from most of the persons of dis- 
tinction in this city. 

"The Castle is the St. James's of this place, where 
my Lord Carteret every morning plays the king and 
supports the character to admiration ; and twice a week 
my Lady makes her appearance in the drawing-room, 
which for beauties (in proportion to their numbers) ex- 
ceeds England. As to myself the Court here is more 
entertaining than that of England, as it is more agree- 
able to be one of the company than a spectator ; my 
Lord and Lady having always done me the honor of 
talking with me in public. 

" My present way of living is almost the reverse of 
what it was in England. I dress every day, visit ladies 
in a morning, receive compliments in form, and never 
stir without a chair; in short, I am frightened at my 
own appearance, and think I have more pretensions to 
the beau than man of business; but they comfort me 
and say ' it is the way of the place.' I have almost gone 
the round, and when this is over I will by degrees sink 
into my old way. 

" The profuseness of the people in eating and drink- 
ing is most amazing, and may properly be called the 
national vice. It is no uncommon thing here for people, 
in a literal sense, to eat themselves out of house and 
home. Six dishes is the meanest table you sit down at, 
and entertainments have seldom less than fifteen. The 
wine is light and agreeable, but would not be esteemed 



126 DUDLEY RYDER. [i733- 

in England ; and if you go to the expense of the fullest 
wines you will save nothing by fetching them from this 
place. 

" Dear sir, accept this as a first visit after long ab- 
sence, where the conversation is perplexed by a variety 
of subjects ; but I hope we shall often meet in this way, 
that our future familiar letters may sometimes deceive 
me and make me forget the distance by which I am 
separated from my friend. 

" I am, dear sir, yours, &c. 
"J. Bowes.' 

" Pray inclose your letters to me under cover to the 
Chancellor." 

In 1733, Mr. Bowes had become Solicitor General in 
Ireland, and he thus addresses his old friend : — 

" 24th September. 

" I take it for granted there will be removes in the law 
in England before the next term, and it gives me great 
pleasure to hear from all hands that Mr. Ryder will be 
my elder brother." 

This promotion having taken place, and Mr. Ryder 
having married on the strength of it, he received, some- 
what tardily, the following congratulations from Mr. 
Bowes : — 

" Dec. 21, 1733. 

" Were you sensible of the fatigue I have undergone 
this session of parliament, you would readily excuse my 
neglect in not congratulating you sooner upon your 
marriage, promotion, and (what more affects me) the re- 
covery of your health. Besides, I flatter myself you 
want not such proofs to convince you of my regard for 
your welfare and prosperity." 

The next year Bowes wrote the following letter to 
Ryder, in reference to the custom which then prevailed 
of transmitting every Irish bill to London for the opinion 
of the English Attorney and Solicitor General before it 
was allowed to pass : ' — 

' This conclusion seems very cold ; but at other times he says — 
" Most affectionately yours," 
and " Your most affectionate and faithful friend and servant." 

' Among the forms handed over to me when I was appointed Attorney 
General, was one to this effect ; — '• I hereby certify that I have perused 
this bill, passed by the two Houses of Parliament in Ireland, and am 



1733-1 DUDLEY RYDER. 127 

"April 30, 1734. 

" Yesterday put an end to our tedious and trouble- 
some session of parliament, in which I am sorry Mr. 
Attornej' and you had so large a share. Perhaps expe- 
rience may reconcile you to Sir Edward Northey's rule, 
who used to say he had no farther business with Irish 
bills but to take care of the King's prerogative and the 
interest of the mother country. I heartily rejoice to 
hear that you have got safe through the great fatigue 
of this winter, and hope by the time I can see London 
you will be so far at leisure as to admit of an hour's 
chat with an old friend." 

Ryder had another professional friend, Mr. Wain- 
wright, who was sent over to Ireland as a Puisne Judge, 
and from whom he received the following amusing ac- 
count of Irish duels and of Irish juries: — 

" Dublin, Aug. 3, 1733. 

" Hitherto, Dublin has been, in comparison of what 
it is now, like London in a long vacation compared with 
itself when the parliament is sitting. Now the ladies 
flock to town, and show that there are beauties in Ire- 
land. The Court here is very gay, and the Judges have 
as large a share of all public and private diversions as 
they please. These relish very well after a circuit of 
500 miles in a very wild country where all the beautiful 
scenes of nature are accompanied with some horrors 
like the pictures of Salvator Rosa. [After describing a 
gigantic race of peasantry he had met with in Con- 
naught, he proceeds :] These are a quiet, civilized gen- 
eration ; but there is a strange alacrity to push among 
those who are just one degree removed from the com- 
mon people. These gentlemen are much given to quar- 
rel at assizes, and one part of our business is to bind them 
to their good behavior. I think this noble science has 
left the capital, and is got now into the remoie parts of 
the kingdom, where the fencing masters (who ought to 
be transported as vagabonds) teach schools. I tried, this 
summer, two of the scholars for as flagrant a duel as 
ever came before a court. If all the jury had been by 
when the challege was carried, or at the place of battle 

of opinion that it contains in it nothing repugnant to the law of Eng- 
land." 



128 REIGN OF GEORGE II. [1734. 

(as many spectators were), and saw each man kill his 
adversary, they would never have found them guilty of 
the murder. But I was surprised to find them persist 
in bringing in their verdict ' MANSLAUGHTER SE DE- 
FENDENDO.' This they would do, that the prisoners 
might be free to fight again." 

Four years having obscurely glided on, Ryder was 
promoted to be first law officer of the Crown, when 
Willes, the Attorney General, was made Chief Justice 
of the Common Pleas. 

Mr. Attorney Ryder devoted all his energies to tht 
duties of his office, which he performed most admirably. 
Although a quarter of a century in the House of Com- 
mons, he never mingled in debate except to explain 
some point of law. Ever faithful to the prime minister 
for the time being, he engaged in no political intrigues, 
and like the royal master whom he served, he "hated 
painters and poets," so that no attractive name is intro- 
duced in describing scenes in which he took a part. His 
energies were never called forth by any personal con- 
flict, or any distinct complaint of his official conduct. 
Though the Jacobites grumbled a little, because he ap- 
peared so often against their leaders, they never at- 
tempted to charge him with the indecent bullying of 
former days, nor with straining the enactments of the 
law against them ; so that his friends were not called 
upon to sound his praises. Hence the lasting light often 
struck out in the collision between the attack and de- 
fense of public men is here entirely wanting. Yet he 
was a person of great importance in his own time ; he 
never stirred out, even to pass between his house in 
Chancery Lane and his villa at Streatham, without a 
coach-and-six, and he was the admiration or envy of 
two generations of lawyers. 

A few of his performances in parliament and at the 
bar are commemorated by contemporary writers, and 
these it will be my duty shortly to notice.' Soon after 
he was made Attorney General he had to conduct 
through the House of Commons the Bill to punish the 
city of Edinburgh for the murder of Captain Porteus: 

' He sat lor Tiverton, and established an interest in this borough which 
gave his fan.,/y tjie command of it till the passing of the Reform Bill in 
1832. 



V37-] DUDLEY RYDER. 



129 



and the following speech is reported or invented for him 
by Dr. Johnson : — 

" Sir, the bill nov/ before us I will venture to say is a 
bill that at this juncture must greatly contribute to the 
peace and tranquillity of this nation. The spirit of dis- 
affection and riot seems to have gone abroad ; and if a 
timely and effectual stop is not put to it by a vigorous 
interposition of the legislature, no gentleman can be 
bold enough to say where it may stop. In the chief city 
of one part of the United Kingdom it has already left 
too many proofs of its fatal tendency, and how soon it 
may communicate itself to the other I tremble to im- 
agine. The Upper House, sir, has set us the example in 
what manner we ought to treat, and in what manner we 
ought to punish such unheard-of insolence and barbarity. 
I hope, sir, we never shall be upbraided with being cold 
in seconding their zeal ; I hope, sir, that it never shall be 
laid to the charge of a British House of Commons that 
it has been remiss in resenting an insult upon all law and 
majesty, while British Peers have been forward in vindi- 
cating both. It is true that the charge against the pro- 
vost and citizens of Edinburgh consists chiefly in their 
neglecting to prevent the tumult before it happened ; in 
their neglecting to suppress it after it had happened ; and 
in their neglecting to discover, apprehend, and secure 
those who were guilty of an audacious riot and of a cruel 
murder. But this charge which is the foundation of the 
bill is not to be considered as negligence only ; for he 
who does not prevent a crime which he might and ought 
to have prevented, has always in law been looked upon 
as morally and legally guilty of that very crime. But it 
has been proved that the magistrates and citizens of 
Edinburgh might and ought to have prevented this in- 
surrection, might and ought to have suppressed it, and 
might and ought to have discovered, apprehended, and 
secured the rioters and murderers. Therefore they are 
answerable for the crimes which have been committed ; 
and the punishment to be inflicted upon them by this 
bill is mild and merciful. " 

Nevertheless, the resistance to it was so great, that 
all the stringent clauses which it contained were struck 
out, and it ended in imposing a fine for the benefit of 

in — q. 



130 REIGN OF GEORGE II. [1740. 

Captain Portcus's widow, who had been promoted from 
presiding in his kitchen to preside at his table; "so that 
it merely converted a poor cook-maid into a rich lady.'" 

In a debate on the question whether the House of 
Commons should proceed in a summary manner to pun- 
ish by its own authority the printer of a libel, or should 
direct him to be brought to trial before a jury, Mr At- 
torney General Ryder said, — 

"Sir, whence so much tenderness can arise for an 
offender of this kind I am at a loss to discover ; nor am 
I able to discover any argument that can be produced 
for exempting from instant punishment the printer of a 
paper which has already been determined by a vote of 
this House to be a scandalous libel tending to promote 
sedition. It has, indeed, been agreed, that there are 
contained in the paper some true propositions, and some 
passages innocent, nay, rational and seasonable. But 
this, sir, is nothing more than to say, that the paper, 
flagitious as it is, might have been swelled to a greater 
degree of impudence and scurrility; that what is already 
too heinous to be borne, might by greater virulence be- 
come more enormous. If no wickedness, sir, is to be 
checked till it has attained the greatest height at which 
it can possibly arrive, our courts of criminal judicature, 
may be shut up as useless; and if a few innocent para- 
graphs will palliate a libel, treason may be written and 
dispersed without danger or restraint ; for what libel 
was ever so crowded with sedition, that a few periods 
might not have been selected which, upon this principle, 
might have secured it from censure ? This paper was 
circulated among the representatives of the people as 
they entered this House, under the specious pretense of 
giving them useful information ; but the danger of pre- 
venting intelligence from being offered to us does not 
alarm me with any apprehensions of disadvantage to the 
nation, for I have not so mean an opinion of the wisdom 
of this assembly as to suppose that it requires such aids 
from officious instructors, who ought, in my opinion, sir, 
rather to be taught by some parliamentary censure to 
know their own station, than to be encouraged to neg- 
lect their proper employments for the sake of directing 
' 10 Pari. Hist. 274. 



1 74 1 -J DUDLEY RYDER. 



131 



their governors. When bills, sir, are depending by 
which either the interest of the nation or of particular 
men may be thought to be endangered, it is, indeed, the 
incontestible right of every Briton to present his petition 
at the bar of this House, and to specify the reasons on 
which it is founded. This is a privilege of an inalienable 
kind, which is never to be denied or infringed ; and this 
may always be supported without encouraging anon- 
ymous intelligence, or receiving such papers as the 
authors of them are afraid or ashamed to own, and 
which they, therefore, employ meaner hands to dis- 
tribute." 

The parties were summoned to the bar, and com- 
mitted for a breach of privilege.' 

A bill having been brought in "for the better man- 
ning of the navy," which gave very objectionable pov/ers 
to Justices of Peace to authorize the impressing of 
seamen by constables, it met with strong opposition ; 
some members denying the right of impressment alto- 
gether, and proposing that bounties should be given 
to induce the voluntary enlistment of seamen in the 
navy : — 

Mr. Attorney General Ryder: "Sir, the practice of 
impressing, which has been declaimed against with such 
vehement exaggerations, is not only founded on im- 
memorial custom which makes it part of the common 
law, but is likewise established by our statutes. Why 
is it, therefore, to be considered illegal or unconstitu- 
tional ? Upon an emergency, all must serve by land as 
well as by sea ; and when the royal standard is erected 
in the field, all the King's subjects are bound to repair 
to it and to fight under it. This practice, which is as 
old as the constitution, may be revived at pleasure, and 
rests on the same foundation as the impressment of sea- 
men. The safety of the state is the supreme law, which 
must be obeyed. As to the proposed bounties, they 
would be wholly ineffectual, impressment must still con- 
tinue, the apparent hardships of the system would be 
aggravated, and you would have a much les* powerful 
navy at a much greater cost to the state." 

However, Sir Robert Walpole, seeing that the 
' II Pari. Hist. 887. 



132 REIGN OF GEORGE II. [1744. 

measure was so unpopular that it might precipitate his 
downfall, wisely abandoned it ; and although a bill 
passed " for the better manning of the navy," all the 
obnoxious clauses were withdrawn from it.' 

When Prince Charles Edward was about to engage in 
his chivalrous expedition, which for a time promised so 
favorably, and which terminated so disasrrously, Mr. 
Attorney General Ryder introduced into the House of 
Commons the bill for suspending the Habeas Corpus Act. 
But we are only told that, " after enlarging on the 
present dangerous situation of affairs in this country, 
when not only a foreign invasion but domestic troubles 
were to be provided against, he said, that, fully con- 
vinced as he was of the importance of that invaluable 
law for the preservation of our liberties, he should as 
soon have cut off his right hand as stand up to make 
that motion, if he were not fully persuaded that it was 
absolutely necessary to secure all the invaluable bless- 
ings which we enjoyed.'"' 

His greatest effort seems to have been his defense 
of Lord Hardwicke's bill attainting the sons of'the Pre- 
tender should they land in Great Britain or Ireland ; 
making it high treason to correspond with them, and 
postponing till their death the mitigation of the Eng- 
lish law of treason introduced at the Union for doing 
away with corruption of blood in all cases of high 
treason. Not only Jacobites, who looked eagerly for a 
restoration of the true line, but Whigs, who had assisted 
in effecting the Revolution and sincerely supported the 
new dynasty as necessary to constitutional government, 
were shocked by the proposed enactment that the young 
Princes, the undoubted heirs of Cerdic the Saxon, of 
William the Conquerer, of the Plantagenets whether 
wearing the white rose or the red, of the Tudors, of the 
Bruces, and of the Stuarts, — although, personally, they 
had committed no offense against the British nation, 
and although they must have considered that they were 
engaged in a holy enterprise when they were trying, 
with the assistance of faithful adherents, to recover the 
crown for their exiled father,— if taken prisoners in the 
country which their ancestors had ruled for fifteen hun- 
• 12 Pari. Hist. 26-143. » 13 lb. 671. 



1744.] DUDLEY RYDER. 



133 



dred years, should, without any form of trial, be hanged 
like dogs on the bough of the next convenient tree. 
The new treason of simply corresponding with them 
while they remained in distant lands was startling, as the 
interchanged letters might amount to mere courtesy, or 
might touch some point of philosophy or the arts. But 
the indefinite prolongation of forfeiture of all property 
and all honors, on a conviction for high treason, was 
that which caused the greatest alarm. The union with 
Scotland never could have been accomplished except 
upon the solemn promise that, if the English law of 
treason was introduced into that country, " corruption of 
blood," its most cruel incident, should entirely cease at 
the death of the son of James II. The new measure 
was denounced as not only unjust and inhuman in itself, 
but as the breach of a national compact, and of the con- 
dition on which the Hanoverian family had been invited 
to the throne. 

Mr. Attorney General Ryder : " Sir, the cause for at- 
tainting the two sons of the Pretender, in case they 
should land or attempt to land in Great Britain or any 
of the dominions thereunto belonging, can stand in no 
need of any long explanation, or of many arguments 
for securing to it your approbation. It is vain, sir, to 
talk or to think of hereditary right to the crown beyond 
what we find in the Act of Settlement. Our only legiti- 
mate sovereign is his Majesty King George II., to whom 
we have all sworn allegiance, and whom God long pre- 
serve ! All who contest the right to the crown of him 
and his heirs, must be treated as traitors. We cannot 
look to the pedigree of those who compass the death of 
our lord the King or levy war against him in his realm. 
The stability of government is essential to the good of 
the people, and this can only be secured by speedily dis- 
posing of those who claim the crown and try to get 
possession of it by force of arms. On this principle the 
Duke of Monmouth was attainted by parliament, and 
executed without any form of trial ; and on the same 
principle the present Pretender, calling himself James 
III. and James VIII. of Scotland, was himself attainted 
by act of parliament in the year 1715. Notwithstanding 
the attainder, no one would be justified in putting the 



134 REIGN OF GEORGE II. [1744- 

law in force without a v/arrant from the Government, 
and there would always be room for a display of royal 
clemency. With respect to the prohibition of corres- 
ponding with the sons of the Pretender, I am not much 
surprised that there should be some uneasiness, con- 
sidering how many (wishing to have two strings to their 
bow) ever since the fight of James II., while they pro- 
fess a devoted adherence to a new order of things, have 
wished to keep up a good understanding with the exiled 
family, contemplating the possibility of a new Restora- 
tion. Ought this double dealing to be encouraged? 
The courtesy to be found in such letters is the offer of 
a hospitable welcome in Lochaber, the philosophy dis- 
cussed is the divine right of kings, and the art to be 
illustrated is the art of rebellion. For the good of hot- 
headed Jacobites and Janus-faced politicans themselves, 
such correspondence should be interdicted, that they may 
be saved from temptation and delivered from evil. The 
clause continuing the existing law of forfeiture for 
treason till the death Of the sons of the Pretender will 
require some more observation, for it has been repre- 
sented as inconsistent with religion, inconsistent with 
natural justice, inconsistent with national good faith, 
inconsistent with the freedom of our constitution. All 
that can be said against forfeiture for treason must pro- 
ceed from mistaking and misrepresenting the nature of 
punishment, and the end for which it has been intro- 
duced into human societies. It is said that punishment 
is ' malum passionis, quod infligitur ob malum actionis,' 
and therefore in its own nature it must be confined to 
the person of the criminal ; for whoever pretends to in- 
flict a punishment upon an innocent person, cannot 
properly be said to punish : on the contrary, he deserves 
to be punished, because, in so doing, he commits a crime, 
or a ' malum actionis,' and for that reason ought to suffer 
a 'malum passionis.' However, there are many mis- 
fortunes, inconveniences, and losses which innocent men 
are subjected to by the nature of things, and may be ex- 
posed to by the laws for the preservation or welfare of 
society. It is a misfortune for children to be born of 
parents afflicted with hereditary diseases; it is a mis- 
fortune for children to be reared by parents who are 



i744j DUDLEY RYDEK 135 

poor or profligate ; but these misfortunes are not to be 
called punishments. In countries were slavery is per- 
mitted, children born of slaves are the property of masters 
■of their parents. In the ancient Roman commonwealth, 
the children of plebeians could not marry into a patrician 
family, nor be advanced to any of the chief posts of the 
government. In a similar category are children, by our 
law, born of parents convicted of treason. If the good 
of society requires the property of the parent to be for- 
feited for his crimes, his children suffer a misfortune, but 
are not subjected to punishment." 

He then proceeds at enormous length, but with very 
considerable ability, to quote the opinions on this subject 
of Grotius, of Puffendorf, and of Cicero; and to examine 
the treason laws of the Jews, of the Athenians, of the 
Romans, of the Saxons, of the Normans, and of the Eng- 
lish from the reign of Edward III. downwards ; showing 
that, by the most enlightened statesmen and the wisest 
nations, forfeiture of property had, for the peace of so- 
ciety, been inflicted as a punishment on those who had 
attempted to overturn the existing government, whether 
monarchial, aristocratical, or mixed ; and the love of 
parents to children had been taken advantage of to 
deter men from crimes which are subversive of social 
•order, and to which there is often a strong inducement 
from ambition, cupidity, and love of change. He thus 
■concluded : 

" The execution of a traitor is a fleeting example ; 
but the poverty of his posterity is a permanent lesson 
of obedience to the laws, whereby rebellion and civil war 
are prevented, and liberty is allowed to flourish. The 
reason which induced Parliament to continue forfeiture 
for treason in this country, at all events till the death 
of the old Pretender, now applies with equal strength 
to continue it till the death of his sons. The infatuated 
attachment to the family which systematically attacked, 
and which if recalled would soon effectually destroy, both 
our religion and our liberties, still continues ; and wicked 
men, under pretense of it, seek to prosecute their own 
schemes of lawless aggrandizement. Whether we shall 
£ver abolish a punishment so salutary and necessary, 
there is no occasion now to determine ; but, at all 



136 REIGN OF GEORGE II. [1744. 

events, while the Pretender's sons survive, there will 
always be too many amongst us affected by an itch of 
rebellion ; and all lawyers and politicians agree, that se- 
verity of punishment should be in proportion to the 
evils arising from the offense, and the probability of its 
being repeated." ' 

The bill passed ; but it had no effect in deterring 
Charles Edward from his purpose, or in cooling the 
ardor of his followers ; and as wise men preferred the 
existing system of government, from the superior ad- 
vantages enjoyed under it, I suspect that the more pru- 
dent course would have been, by amending our laws, tO' 
have removed the unpopularity from the Government,. 
— which was then so great that the mass of the nation 
looked with indifference to the result of the contest. 

The next speech of Mr. Attorney General Ryder 
transmitted to us is an extremely elaborate one, which 
he delivered against a bill introduced to prohibit in- 
surances on French ships during the war. Carrying 
the principles of free trade to an extreme which startles 
us even in the present age, he contended that we should 
be gainers by indemnifying French merchants against 
English capture ; and this proposition he enforced and 
illustrated by an immense body of statistics and calcula- 
tions, which would now be uninteresting. Having shown 
the large profit made by insuring enemies' property, he 
pointed out the imprudence of sacrificing this in the vain- 
hope of destroying their commerce : — 
' " Like the dog in the fable," said he, " by snatching, 
at the bone we fancy we see in the water, we shall lose 
that which we now hold in our mouth. The trade of 
insuring we possess without a rival ; but it will soon be 
established in other countries, and our own merchants 
may deal with foreign insurance companies. Let the 
King of France but talk of insurances in his drawing- 
room ; let him but say it is a business no way inconsis- 
tent with noblesse ; let him but insinuate that he will 
show favor to those who engage in it, and the whole 
French nation will become insurers." 

However, although he was ably supported by Murray, 
the Solicitor General, the bill passed ; and, indeed, our 
' 13 Pari. Hist. 889. 



t7Si-] DUDLEY RYDER. 



137 



courts would now consider such insurances void at com- 
mon law, as contracts with alien enemies, and contrary 
to public policy.' 

On the death of Frederick Prince of Wales, Mr. At- 
torney Ryder had to carry through the House of Com- 
mons the bill for appointing the Princess of Wales 
Regent, with a Council to control her, at the head of 
which was the Duke of Cumberland. This last part of 
the arrangement was very unpopular, and he had great 
difficulty in defending it. Having observed that the 
precedent now established would settle the practice of 
the constitution for the future, he thus proceeded :— 

" I shall freely grant, sir, that a sole regent, with 
sovereign power, is more consonant to our constitution, 
and less exposed to faction, than a regent limitsd and 
restrained to act in all matters of great importance by 
the advice of a council of regency ; but will any gentle- 
man say that the appointing of a sole regent with sover- 
eign power ought to be laid down as a general rule to be 
observed in every case of a minority? If we appoint a 
regent with a council of regency, we are exposed to the 
danger of faction ; if we appoint a sole regent with ab- 
solute power, we are exposed to the danger of an usurp- 
ation. But as usurpation is a danger much more terrible 
than faction, the safer general rule is, that a council of 
regency ought to be established, and that the regent be 
confined to act by their advice." He then went over the 
various minorities which had occurred in English history 
since the accession of Henry HI., illustrating his propo- 
sition by the manner in which a limited and unlimited 
regency had worked ; and thus concluded : — " If a sole 
regent with sovereign power should now be appointed, 
I am persuaded the same course will ever after be in- 
sisted upon, till some regent, like Richard III., has con 
vinced us when it is too late of the danger we incur. If 
I were to look no farther than the excellent Princess 
named by this bill, I would cheerfully intrust her with 
absolute sway ; but I am sure she has too much wisdom 
not to excuse our refusing to pay her a compliment at 
the apparent risk of one of her posterity." 

The bill passed as introduced, but never came into 

• 14 Pari. Hist. 128. 



tsS REIGN OF GEORGE II. [1753- 

operation, as George II. survived till his grandson was 
of age.' . 

The last time that Sir Dudley Ryder ever spoke in 
parliament was in supporting Lord Hardwicke's cele- 
brated bill " to prevent clandestine marriages." He 
showed at great length, and with much ability, the evils 
produced by the existing system of giving validity to 
every marriage celebrated by a priest in orders, in any 
place, at any hour, without license or proclamation of 
banns, and without the consent of parents or guardians ; 
he proved that it was within the just power of the legis- 
lature to regulate the manner in which this, the most 
important of all contracts, shall be entered into ; and 
he defended the several provisions of the bill which were 
to guard alike against the passions both of the young 
and the old : — 

" We often find," said he, " the passion called love 
triumphing over the duty of children to their parents; 
and, on the other hand, we sometimes find the passions 
oi pride and avarice triumphing over the duty of parents 
to their children. I am persuaded that our ancestors 
would long ago have applied a similar remedy, but for 
the superstitious opinion that when a marriage between 
two persons come to the age of consent, though minors, 
is once solemnized by a priest in orders, it is so firmly 
established by the Divine Law, that it cannot be de- 
clared null by any human tribunal. Thank God ! we 
have, in this age, got over such dogmas ; and the Right 
Reverend Bench in the other House deserve well of 
their country for consenting to render Christianity con- 
sistent with common sense." 

After a furious opposition, the bill was carried ; but 
Mr. Attorney ought to have seen a gross defect in it, 
which we have lately cured, — that it allowed the validity 
of marriages to be questioned at any distance of time 
upon an alleged non-compliance with its provisions, al- 
though the parties might have lived many years to- 
gether as man and wife after they had come of age." 

It must be acknowledged that Ryder's parliamentary 
career was not brilliant, but he deserves the praise of 
never having affected what he could not accomplish, and 
' 14 Pari. Hist. 1023. > 15 ibid. i. 



1746-] DUDLEY RYDER. 



139 



of having, without envy or jealousy, confined himself to 
professional subjects, while Murray, his inferior officer, 
was the ministerial leader in the House of Commons,, 
and was contesting the palm of eloquence with the elder 
Pitt. 

In the courts of justice. Sir Dudley Ryder, as Solicitor 
and Attorney, did the business of the Crown very 
efficiently ; but, with the exception of the trials which 
arose out of the rebellion of 1745, he was not engaged in 
any of permanent interest. In addressing the jury he 
studied brevity to a degree which astonishes us, accus- 
tomed to the long-winded orations of modern times. 
The following is the whole of his speech (as taken by a 
short-hand writer) in opening the important prosecution 
for high treason against Colonel Townley, who had pro- 
claimed the Pretender in Lancashire, and had com- 
manded a regiment of horse in his service : — 

" My Lords, and you, Gentlemen of the Jury : The 
prisoner at the bar, having been deeply engaged in the 
late unnatural and wicked rebellion, begun in Scotland, 
and carried into the heart of this kingdom, in order to 
overset our present happy constitution in church and 
state, hath rendered necessary this prosecution against 
him. I do not doubt but that, in the course of our evi- 
dence, we shall make it appear to your satisfaction that 
the prisoner, with others his confederates, did assemble 
in a warlike manner, and procured arms, ammunition, 
and other instruments of war, and composed a regiment 
for the service of the Pretender to these realms, to wage 
war against his present most sacred Majesty, and did 
march through and invade several parts of this kingdom, 
and unlawfully did seize his Majesty's treasure in many 
places, for the service of their villainous cause, and took 
away the horses, and other goods, merchandise, and 
chattels of many of his Majesty's peaceable subjects ; 
and that, during the said march, the prisoner, with other 
rebels, in open defiance of his Majesty's undoubted 
right and title to the crown of these realms, frequently 
caused the Pretender's son to be proclaimed in a public 
and solemn manner as regent of these realms, and him- 
self marched at the head of a pretended regiment, which 
they called 'the Manchester regiment.' My Lords, 1 



I40 REIGN OF GEORGE II. [i74&. 

shall not take up the time of the Court in saying a great 
deal, for all that the prisoner is charged with will appear 
so full and plain, from the evidence we shall produce for 
the King, that there will not be the least doubt with the 
jury to find him guilty." 

The prisoner's counsel, in stating the defense, that he 
had acted under a commission from the King of France, 
" acknowledged that the Attorney General had opened 
the case with all the candor that could be expected, and 
had not exaggerated the charge beyond the bounds of 
humanity and good nature." The trial, which now-a- 
days would last a week at least, was all over in a few 
hours.' 

On the impeachment of Lord Lovat, the conduct of 
the prosecution before the House of Lords chiefly fell 
on Sir Dudley Ryder, as one of the managers for the 
Commons. In opening the case, he distributed the facts- 
under three heads: "I. Those which happened pre- 
cedent to the Pretender's son's landing: 2. What hap- 
pened after that time, and before the battle of Culloden : 
3. What arose since that happy event." — 

"The first," said he, "will disclose to your Lordships- 
a wicked and traitorous scheme, begun and carried on 
for many years, for bringing over the Pretender by the 
assistance of a foreign force, in which his Lordship will 
appear to have had a principal hand. The second will 
include the more immediate scene of action in the late- 
wicked rebellion, and the particular parts which the pris- 
oner took in it. The third will show him in the circum- 
stances of a defeat ; and, in every part of this whole 
scene, he will appear plotting, associating, and support- 
ing all the steps that were taken for subverting this 
happy establishment, dethroning his Majesty, and sub- 
stituting a Popish Pretender in his room." 

He then traced the secret machinations of the High- 
land chiefs, guided by Lord Lovat, to restore the exiled 
royal family ; and he gave a lively sketch of the well- 
known military operations, from the landing of the Pre- 
tender, till the final overthrow of his cause, showing, 
how the prisoner, while pretending to stand by King 
George, had sent his clan to fight on the other side: 
' 18 St. Tr. 329. 



*746.] DUDLEY RYDER. 



141 



under his son, the Master of Lovat. Thus he pro- 
ceeded: — 

" I am now come, my Lords, to that last period of 
iime— from the battle of Culloden. The prisoner was 
waiting, not very far off, the event of that important 
■day. The night after, the Pretender's son came to Gor- 
tuleg, where the prisoner was, and had an interview with 
him. The noble Lord did not even then disavow 
his cause, but received him as his prince ; excused 
his not joining him in person ; and, after the 
tenderest embraces, parted from him as a faithful sub- 
ject to a royal master. The prisoner, as well as those 
who had been in open arms, was obliged to fly. He knew 
his guilt was the same as theirs, and that he deserved 
the same treatment. The rebel army, and the chiefs 
who escaped from the battle, were now dispersed ; but, 
■on the 15th of May, a meeting was held at Mortleg, to 
consider what was proper to be done for their common 
safety. The noble prisoner at the bar met them — not 
as an innocent person, to advise them to lay down their 
arms and beg for mercy ; not as a neutral person, if neu- 
trality in the cause of our king, religion, and liberty can 
be attended with a less degree of guilt ; but as one in- 
volved in the same common crime and calamity, — as a 
chief whose age and experience entitled him to the lead ; 
and he took it. He advised them to raise a sufficient 
number of men to defend themselves against the King's 
troops till they could make terms for themselves ; he 
proposed that his son should muster 400 Frasers ; and, 
there being 35,000 louis d'or remaining of the subsidy 
lately received from France, a sum equal to twenty days' 
pay for this band was paid to his servant. When the 
master of Lovat, at a subsequent meeting, proposed to 
surrender to his Majesty, the prisoner dissuaded him 
from it, and reflected upon him as a person of mean 
spirit to think of so dishonorable an action. He himself 
made off, with a guard of twenty soldiers, whom he took 
into pay for his defense. However, he was pursued and 
taken by a party sent after him by the Duke of Cumber 
land. Being asked how he could act as he had done 
after all the favors he had received from the Govern 
merit, he answered ' It was not against the King I acted, 



142 REIGN OF GEORGE II. [1746. 

but the Ministry, who took away the independent com- 
pany I had been trusted with. Who would have 
thought but that the Highland men would have carried 
all before them? If the young Pretender would have 
taken my advice, he might have laughed at the King's 
forces : none but a madman would have fought that 
day. Besides, we were in daily expectation of farther 
assistance from France.' When brought before Sir Ed- 
ward Faulkener he did not think of denying his treason, 
but made the same open avowal of his motive, adding, 
' I resented the loss of myindependentcompanyso much 
that, if Kouli Khan had come, I should have been for 
him. — Your King is merciful, and will remember the 
services I have formerly done to his family. * I can still 
do greater than twenty such as old heads as mine are 
worth. However, I am ready for any part which he 
may assign to me, 

. ..." In utrumque paratus, 
Seu versare dolos, seu certse occumbere morti." ' 

The Commons have thought this a matter worthy 
their interposition, and therefore have taken it into their 
own hands, because the prisoner has been the contriver, 
the promoter, and the conductor of the rebellion, so far 
as Providence suffered it to go. I have entered into the 
case so fully, that your Lordships may have the greatest 
of all satisfactions which judges can desire, the certainty 
of pronouncing a right judgment; and as to the people 
in general, it is of no small moment that they should be 
enabled to behold in one man the pernicious schemes 
which, for many years have been concerting between 
Rome, France, and unnatural traitors at home, — that 
they may see the rebellion, from which they have lately 
so severely felt, clearly traced to its source, and be fully 
convinced that whilst they are themselves enjoying at 
their ease, and too often asleep, their religion, their 
liberties, and their properties, under the protection of 
the best of princes, and the influence of the wisest con- 
stitution ever framed, they have enemies both abroad 
and within their own native country who are constantly 
awake for the destruction of all they hold dear, — and 
learn this certain truth, which should be imprinted in 
everlasting characters on the mind of every Briton, that 



I7S3-J DUDLEY RYDER. 143 

there is no effectual security against the determined and 
persevering conspiracies of those who condemn both 
divine and human laws but a firm and vigilant union of 
honest men. Any attempt to prevent, dissolve, or 
weaken such a union is little less than treason in its be- 
ginning, and, if not speedily crushed, it must lead to the 
worst that can happen to this land of liberty, the total 
destruction of the royal family and of the happiness we 
now enjoy under their benign sway,'" 

In the last recorded case in which Sir Dudley Ryder 
appeared as an advocate, he met with a flagrant mortifi- 
cation. This was the prosecution of William Owen for 
a libel, which the Attorney General was ordered to in- 
stitute by a vote of the House of Commons, the party 
supposed to be libeled, in consequence of their foolish 
commitment of the Honorable Alexander Murray. In 
his opening address to the jury, he was by no means 
abstemious in praising his clients or in abusing their 
detractor : — 

" The libel," said he, " contains charges of partiality, 
injustice, barbarity, and corruption against the House of 
Commons, that House which is the guardian of our 
liberties and the protector of all we hold dear. Every 
one must be shocked who reads this wicked — diabolically 
wicked pamphlet. The parliament has justly voted it 
' a false, malicious, infamous, scandalous, and seditious 
libel, tending to create confusion and rebellion.' To me 
it is astonishing how it could enter in to the mind or 
heart of man to write such a libel. What ! shall a person 
appeal from the judgment of that court who are the only 
judges of things pertaining to themselves — I mean the 
House of Commons? An appeal! To whom? To a mob ! 
Must justice be appealed from ? To whom? To injustice ! 
The writer says, ' he appeals to the good people of Eng- 
land, particularly the inhabitants of Westminster.' The 
House of Commons are the good people of England, 
being the representatives of the people. The rest are — 
what? Nothing, unless it be a mob. And what can be 
in a mob but confusion? But the clear meaning of this 
libel was an appeal to violence. Gentlemen, whosoever 
reads this libel will find it the most pungent invective 

> 18 St. Tr. 559. 



144 REIGN OF GEORGE II. [1753. 

that ths skill of man could invent. I will not say the 
skill, but the wit, art, and wicked contrivance of man, 
instigated by Satan. To say that this was not a libel, is 
to say that there is no justice, equity, or right in the 
world. If the House of Commons is not to be defended, 
and to have protection and relief in a court of law, your- 
selves, your homes, and your children will be without 
protection or relief. You will see, gentlemen, whether' 
the evidence does not satisfy you that the libelous 
pamphlet was sold in the shop of the defendant ; and, irj 
that case, it will be your duty to find him guilty." 

An Attorney General who should now make such a 
speech — denouncing the whole constituent body, or the 
people of England, as a mob, without any touch of 
reason or sense of justice — would' be impeached, unless 
he were shut up in a madhouse. Even a century ago it 
seems to have given mortal offense to those to whom it 
was addressed. The jury, by an artful dodge, might 
have been wheedled out of their rights, — but they would 
not have been Englishmen if they had suffered them- 
selves to be thus bullied. The sale of the pamphlet in 
the defendant's shop by his authority was incontro- 
vertibly proved ; yet, although the Chief Justice fully 
adopted the doctrine that the jury could not look be- 
yond this fact, they took the question of libel or no libel 
into their own hands, and to the unspeakable delight of 
the public, — without condescending to answer whether 
they considered the evidence of publication sufficient, — 
insisted on finding a general verdict of NOT GuiLTY." 

Mr. Attorney was afraid to face the mob assembled 
round Guildhall, and concealed himself in the Lord 
Mayor's closet. After a few hours he ventured to return 
to his house in Chancery Lane ; but he found a great 
bonfire blazing in Fleet Street, and, before his hackney 
coach was allowed to pass, he was obliged to give some- 
thing to drink to the health of the jury ; — in return for 
which, without knowing their benefactor, they threw to 
him a copy of the following song, supposed to be sung 
by the foreman and a chorus of jurymen, but actually 
composed by an Irish porter." 

J iS St. Tr. I2C3-I2, 30 ; ante, pp. 115-116. 

' Lond. Mag. 1753. Lord Mahon's History, iv. 29, Kneeling at the bai 
of the House of Comnr.ons was never heard of more. 



*74S-J DUDLEY RYDER. 145 

" Sir Doodley, Sir Doodley, do not use you so rudely ; 
You look pale as if we had kilt ye : 
Sir Doodley, Sir Doodley, we shamefully should lye, 
Were we to say the defendant is Guilty. 

" A fig for the Commons ! Who now cares for their summons ? 
Or their votes on the press to make war? 
Murray made them look glum once by calling them ' rum 'uns' 
And refusing to kneel at their bar. 

" Mr. Attorney's grim wig, though awfully big. 
No more shall frighten the nation ; 
We'll write what we think and to Liberty drink, 
And defy his eggs-off. Information." ' 

Sir Dudley Ryder had been for some years impatient 
for the tranquillity and security of the bench, and he 
was soon after thrown into deep consternation by the 
death of Mr. Pelham, the Prime Minister, which threat- 
ened a complete dissolution of the Cabinet. After such 
a long and prosperous voyage, when within sight of port 
he suddenly found himself among breakers, and he was 
afraid of being cast away on the dreary shore of oppo- 
sition. The vessel righted, but he had but little con- 
fidence in the new pilot, and he dreaded some fresh 
disaster. 

Not inopportunely for the Attorney General came the 
apoplexy of the Chief Justice. There was no hesitation 
as to the manner in which the vacancy was to be filled 
up ; and, as soon as the necessary forms could be com- 
plied with. Sir Dudley Ryder took his seat in the Court 
of King's Bench, as the successor of Sir William Lee, 
and was made a Privy Councillor. He was sworn in pri- 
vately at the house of the Lord Chancellor, the parade 
of installation speeches having become obsolete. It was 
expected that he would be immediately raised to the 
peerage ; but Lord Hardwicke's reluctance to have any 
law lord in the House of Peers, besides himself, still 
prevailed. 

Lord Chief Justice Ryder's judicial career was ex- 
tremely brief, being only a few days more than two 
years. During this period he reputably performed the 
duties of his office ; but those who expected that he was 
to introduce reforms and improvements into the admin- 
istration of the Common Law, were disappointed, for he 

' I presume ex-officio Information. 
UI— 10. 



146 REIGN OF GEORGE II. [1745. 

listlessly allowed all things to go on as he found them. 
He had no ambition to raise his fame above that of his 
immediate predecessors, and he satisfied his conscience 
by deciding to the best of his ability the cases which 
came before him, according to the antiquated routine 
which had long been condemned. His decisions are to 
be found in the Reports of Sayer and Lord Kenyon ; 
but, in looking through them, I can find none which, 
from the importance of the point adjudged or the mode 
of reasoning adopted, would now be interesting. He had 
not to preside at any trial for treason or libel ; and he 
came in for no share of the popularity soon after- 
wards enjoyed by Camden, or of the obloquy cast upon 
Mansfield. 

Resentment was excited in his mind by the considera- 
tion that the rank was withheld from him which had 
been conferred on his predecessors, Jeffreys, Parker, and 
Ra5'mond, and which his ample fortune would have so 
well enabled him to support. The profession took part 
with him ; and, feeling that their consequence was im- 
paired by the rule laid down that the Chancellor was the 
only lawyer who could hope to be ennobled, loudly as- 
serted that the public suffered from there being no Com- 
mon Law judge permitted to sit in either Chamber of 
Parliament. AH these complaints would have been vain 
if the Duke of Newcastle, now tottering to his fall, had 
not wished to strengthen himself by making new peers. 
He had been out-voted in the House of Commons on 
Pitt's Militia Bill, and his noble whipper-in gave him 
notice that neither the list of ministerialists in town nor 
the proxy-book was quite satisfactory. He immediately 
suggested the Chief Justice of the King's Bench as one 
new peer ; and, seeing that from the moderate abilities 
and unambitious disposition of this individual, he never 
could be a candidate for the chancellorship, or formid- 
able from obtaining influence in a deliberative assem- 
bly. Lord Hardwicke did not resist the proposal. Sir 
Dudley, pleased that his wife was to be a Baroness, 
that his children were to be Honorable, and that the 
prophesy of his grandfather was about to be fulfilled, 
joyfully accepted the offer, and fixed upon the title of 
" Lord Ryder, Baron Ryder, of Harrowby in the county 



1 75 6-1 DUDLEY RYDER. 



147 



of Lincoln." Accordingly, on the 24th day of May, 
1756, the King signed a warrant addressed to the At- 
torney General, commanding him to make out a patent 
of peerage by this name, style, and title ; and it was 
agreed that the following day the new pec should go to 
St. James's, to kiss hands on his elevation, when the dig- 
nity would have been considered as virtually conferred, 
although some days more were required for the patent 
to pass the great seal. Alas ! amidst the felicitations 
of his family and his friends, he was struck that very 
evening with a mortal malady, and in twelve hours they 
were weeping over his corpse. He had reached his 
sixty-sixth year, but, from a good constitution and tem- 
perance, he seemed to be only entering into green old 
age, and a considerable period of enjoyment and of use- 
fulness was still supposed to be before him. 

We may judge of the sensation produced by this ca- 
lamity from a letter of Archbishop Ryder to the widow 
of the Chief Justice, in which he says : — 

" A greater loss could not be to his family -or his 
friends ; few were ever so great a blessing to all that had 
the honor to be related to him. His kindness to me 
and to my nephews has been boundless ; what his Maj- 
esty and the public have lost by his death will be testi- 
fied by the universal lamentation of it. Whatever may 
be the sorrow of those who are immediately affected by 
it, their duty is to endeavor to overcome it ; the living 
require this of us ; and the dead, if they knew it, would 
grieve at our grieving for them." 

A few days after, his Grace thus addressed the son of 
the Chief Justice : — 

" It is my duty to write to you, though I gave my 
lady your mother the trouble of a letter by the last post, 
Mid can now do little more than mingle my tears with 
the flood of sorrow which overwhelms you on account 
of the loss of your invaluable father. He was ever a 
father to me and mine in the most signal acts of affection 
and kindness. That he is snatched away thus so sud- 
denly, and at so critical a juncture, has the appearance 
of the hand of God in a very extraordinary manner, and 
yet the ways of God with man are unsearchable. Pos- 
sibly he may have been taken from us at the time he 



148 REIGN OF GEORGE II. [1756- 

was the ripest for the honor which posterity will have 
him in remembrance. I would hope too that the honor 
intended his Lordship by his Majesty will be redoubled 
to him by its being renewed to you as a testimony of 
your father's uncommon merit, and of his long and 
faithful services to the Crown. Howevei this may be, 
and however we may be grieved for the loss of him. we 
have the comfort to hope, and to believe that his lot in 
the other world is with the children of God, and that he 
is numbered with the saints." 

It was generally expected that the son's name would 
be inserted in the patent instead of the father's, and that 
he would forthwith be declared Lord Ryder of Harrow- 
by; but, as he was not yet of age, he could not have 
voted in the critical division which was expected, and 
poor old Sir Dudley's " long and faithful services to the 
Crown " were already forgotten. Lord Hardwicke no 
longer felt any jealousy upon the subject, but he treated 
it with the coldest indifference. By the advice of some 
friends of the family, a memorial to the King, stating 
the facts of the case, was prepared ; and they proposed 
that the young gentleman himself should be presented 
to his Majesty, in the hopes that on this occasion there 
might be a favorable announcement of the royal will. 
The Honorable Charles Yorke, then Solicitor General, 
being applied to that he might use his good offices with 
his father, wrote the following frigid reply : 

" Dear Sir, — I have just seen Lord Chancellor, who is 
clearly of opinion that you had better defer being pre- 
sented fo the King till after his Majesty shall have given 
an answer to the memorial, and till after your coming of 
age, which I acquainted him will he in the beginning of 
next month. He thinks the memorial very properly 
drawn, and will present it some day next week. He is 
certainly your friend in it, and I wish you all possible 
success. If I can be of the least service to Lady Ryder 
or yourself, you may always command me. Nothing can 
exceed the respect and love which I bore your father, 
and the obligations which I owe to his kind friendship 
are such as entitle you to every return in my power. 

" I am, dear Sir, with the greatest regard and esteem, 
" Your affectionate and faithful servant, 

"C. YORKE." 



1 756-] DUDLEY RYDER. 



149 



In the political crisis which arose from Murray's de- 
termination to succeed Sir Dudley Ryder, and which 
terminated in the resignation of the Duke of Newcastle 
and Lord Hardwicke, the Ryder memorial was for- 
gotten, and for years to come the Ryder peerage was 
not thought of except among the members of the fam- 
ily. The good Archbishop, to be sure, wrote, " Possibly 
the change of ministry, if what is said of it be true, may 
have placed those at the helm who will be more desirous 
of serving you. The Duke of Devonshire, I am well 
assured, was a fast friend to the late Chief Justice, your 
father ; I have the honor to be known to him, and if any 
solicitation of mine could be of the least service, I would 
go over to try what might be done in it." 

But it was not till twenty years after, when Mr. Ry- 
der had served in the House of Commons during several 
parliaments for the borough of Tiverton, and had zeal- 
ously supported the administration of Lord North, that 
he was at last raised to the peerage by the title of Lord 
Harrowby.' 

We must now go back to take a parting glance at the 
old CJiief Justice himself, who, if he retained any of his 
human feelings after shuffling off this mortal coil, must 
have been rather indignant when observing the neglect 
with which his heir had long to struggle, although he 
might not care much about his own dwindling reputa- 
tion. 

I have nothing more to say in his praise as a public 
man, but it should be known that in private life he dis- 
played the most amiable qualities, and that no fault 
could be imputed to him, except, perhaps, that he was 
rather too uxorious. In his thirty-third year he married a 

' Unfortunately the Ryder family had a quarrel with Lord Mansfield 
about the state coach, which was to be transferred to the new functionary at 
a valuation, as the Lord Chancellor's coach is still transferred. A testy 
note, dated Nov. 29, 1756, says — "Lord Mansfield is only solicitous that 
Mr. Ryder may do what is most agreeable to himself, and as to the rest is 
extremely indifferent. But he would not, for much more than the value of 
the coach, have more than one word about such a transaction with Mr. 
Ryder, for whom he has the greatest regard, and to whom, upon his father's 
account, he would be ready to show upon all occasions every act of civility 
and friendship." I do not know whether the collar of S. S. passed with the 
coach. This gold decoration is the personal property of the Chief Justice ; 
and his family someti-nes retain it as a memorial of their founder, and some- 
times hand it over to lis successor. 



150 REIGN OF GEORGE II. 

charming woman, to whom he was tenderly attached — 
Anne, daughter of Nathaniel Newnham, Esq., of Streat- 
ham, in the county of Surrey, and he lived with her in 
uninterrupted harmony and happiness. While she pos- 
sessed a cultivated mind and elegant accomplishments, 
she managed not only all his household affairs, but all 
his pecuniary transactions, so as to leave him entirely 
free for his professional and official pursuits. They never 
were separated for more than a day except once. In 
the summer of the year 1742 she fell into ill health, and 
she was ordered by the physicians to Bath. He accom- 
panied her, and nursed her till the approach of Michael- 
mas Term indispensably required his presence in Lon- 
don, while she remained for some weeks behind to com- 
plete her cure. During this interval he wrote her a 
letter daily, however busy he might be, — sometimes 
doing so while a trial in which he was counsel was pro- 
ceeding. These effusions are preserved, and I introduce 
a few of them for the gratification of the reader who is 
pleased with genuine touches of sentiment and photo- 
graphic sketches of domestic scenery. 

Having been employed by Henry Fielding to move 
for an injunction to restrain a bookseller from publishing 
a pirated edition of JOSEPH Andrews, and having been 
defeated by reason of an error in the jurat of the affida- 
vits, — before being called upon to speak in another 
cause, he thus addressed Lady Ryder : — 

" Westminster Hall, Saturday.' 

'•My dearest Girl, — I can't help thinking of you in the 
midst of the noise of Westminster Hall. I have this 
moment sat down after endeavoring to rescue Jos. An- 
drews and Parson Adams out of the hands of pirates, 
but in vain ; for this time we are foiled by a mistake in 
the attack. However, another broadside next week 
will do the business. 

" I find this place just in the same situation I left it 
in, — filled with the same reverend and learned judges and 
counsel, and attended with pretty much the same 
clients. 

" The Chief Baron's cushion is still empty, and I don't 
find at all how it is to be filled. 

' Indorsed " Oct. 23, 174a." 



DUDLEY RYDER. 151 

" I am going from hence to Tooting,' and expect 
Molly and Dudley' to call me in case I can't get away 
time enough to return to Chancery Lane by three. 
" Adieu, my Best Beloved, 

" And dearest Friend, 

"D. R." 

Three days after, he gives her an account of the ex- 
traordinary rage for theatricals then stirred up by Gar- 
rick : — 

" 26th October, 1744. 

" Last Saturday the Chancellor was seen at Drury 
Lane play-house. The extraordinary character of Gar- 
rick in Lear would justify the presence of a bishop, 
especially to my Lord of Killalloo, who has heard that 
in Ireland the Chancellor and the Judges open the term 
with a play, at which, I presume, the Bishops assist." 

The following was written by him on a most auspi- 
cious anniversary — which luckily fell that year on a 
Sunday, when he was left entirely free from the distrac- 
tions of business : — 

" Streatham, ist Nov. 1742. 

" My Dearj — I am now here to celebrate your wed- 
ding-day. Let me congratulate myself and you on the 
happiest circumstance of my life. How many joyful 
hours had I lost if my good fortune had not thrown me 
in your way ! I should not, indeed, have known my 
loss, but I might now have been lamenting another 
wedding, or sinking under the weight of solitude and 
indolence, without any end to pursue by all my labors, 
or satisfaction in my acquisitions. Accept, my dear, 
the warmest acknowledgments of a grateful heart for the 
many blessings you bestow upon me ; and, above all, for 
my dearest boy, whose mind daily opens and discovers 
a fund of goodness and understanding that charm me. 
I am just come from teaching him the New Testament 
in Latin. He makes his comments so naturally on every 
verse, that I am better pleased with the knowledge lie 
treasures up than the Latin he acquires by it. He has 
found out a method of discovering the end of the world 
which neither Whiston nor any other of our commenta- 
tors on the Revelations have hit upon. ' Papa,' says he, 
' V'here he had a villa, ' His children. 



152 REIGN OF GEORGE II. 

' the Bible says the end of the world will not come till 
the gospel is preached to all nations : now the Blacks 
and the Turks have neither of them had it ; so we may- 
be sure the world is not yet near its end.' 

" I am, my dearest, 

" Yours for ever, 

"D. R." 

The next letter, remarkable for its lively gossip, was 
written in an evening sitting of the Court of Chancery, 
during the hearing of a cause, after Sir Dudley had 
dined with the Chancellor of the Exchequer, and had (I 
suspect) partaken very copiously of his claret. These 
evening sittings were continued till the beginning of the 
reign of George III., when they were abolished with the 
consent of the sovereign, on the avowed reason that the 
Chancellor himself was apt to appear at them not " as 
sober as a judge " ought to be.' 

" Lincoln's Inn Hall, Nov. 3, 1742. 

" My Dear, — I have received your letter, and must 
answer it now or not at all to-night. I have been to 
pay my compliments at the Prince's court. Miss Faz- 
acicerley appeared there for the first time, and kissed 
hands. Mrs. Campbell inquired there after your health. 
She looks like a ghost, — not at all improved by Ton- 
bridge. I to-day dined, by invitation, at the Chancellor 
of the Exchequer's. It was in the same house where I 
used to see Lord Orford. How different now from what 
it was ! — not more in the nakedness of the walls than 
the abilities and disposition of its owner. The Earl of 
Bath has just had a great windfall by the death of one 
Mrs. Smith. She was mistress to the late Earl of Brad- 
ford, who had settled upon her and her son an estate of 
about ;^8,ooo a year, and in case of the son's death with- 
out issue the disposition of it was given to hef. The 
son became aJunatic, and is now under the care of the 
Court of Chancery without any probability of recovery. 
The Earl of Bath had assisted the mother as a friend to 
the Earl of Bradford. She in recompense has given 
him, in case of her son's death, the bulk of the estate.. 
She has a husband, who had so nice a sense of honor^ 
that he would not only have nothing to do with hec 

' See Lives of the Chancellors, vol, v. ch. cxl. 



DUDLEY RYDER. 153 

while she was in that criminal correspondence, but since 
would not meddle with the wages of iniquity, and so left 
her and everything to her own conduct. 

" I would have you make haste to town and keep me 
out of bad hands, for I am in great danger of growing 
a rake whilst left to myself, for I have been no less than 
twice at the play in a week's time. It's true the imme- 
diate temptation was to see Garrick, but how soon I may 
recover my youthful taste for diversion I can't say. I'm 
glad the Bishop is coming to town. 

" Adieu, my dearest, 

"D. R." 

The following letter, written next day, ingeniously as- 
signs a very innocent origin to a headache with v/hich 
Sir Dudley was then afflicted. But we cannot place ex- 
actly the same confidence in these effusions as in Pepys' 
Diary, which was never meant to meet even the eye of 
a wife, and therefore conceals nothing that she ought 
not to know. The headache might perhaps have been 
traced to a second bottle at the Chancellor of the Ex- 
chequer's, in which the preceding letter indicates that 
Mr. Attorney had indulged, although he was afterwards 
to plead before the chancellor : — 

" Nov. 4, 1742. 

" My Dear, — The Bishop is come very well, after a 
pleasant journey. I wish I had seen you come in at the 
same time ; but I must wait. I can't easily believe that 
the excess of joy on our meeting will make amends for 
the uneasiness I feel by your absence. I'll bear it, how- 
ever, as well as I can. But you have not yet told me 
the utmost period of your stay. Let me know it, that 
I may be able to see to the end of my sorrow, and have 
the daily pleasure of counting the end of its approach. 

" You bid me tell you every post how my health 
stands, which is of more moment to me as you are in- 
terested in it. I am obliged, therefore, to let you know 
that I have had the headache all day. You will expect, 
I know, an account how it came. I believe it was owing 
to my quitting my full-bottom and gown, without an 
equivalent, at the Chancellor of the Exchequer's. I am 
sorry to give you the trouble of hearing this ; but I am 
bound to be ingenuous and make a true confession. I 



154 REIGN OF GEORGE II. 

fear I shall not be completely careful of myself till you 
come and give that cheerfulness to my spirits which 
makes me think it worth while to be well, as I hardly do 
while you are absent. 

" Adieu, thou best of women, 

" D. R.'" 

The next letter accompanied the coach and four heavy 
blacks by which she was to be conveyed to London. 
The vehicle was to be four days in going to Bath, and 
four days coming back, — and there was yet no quicker 
transit for a family ; post saddle-horses were provided 
on the principal routes for cavaliers, but those who trav- 
eled in their own coaches were, for years after, obliged 
to perform the whole journey with their own cattle. 

" Tuesday.' 

" My Dear, — The coach goes to-morrow morning. I 
am impatient till it returns. We have never been sep- 
arated so long. How do you like it ? It is a solitude very 
different from that which I had before we were united, 
when I did not know the happiness of such a union. 

" I am just come from the House. The great attack 
was not made to-day. I understand our enemies can't 
yet agree about it. We, however, expect it soon, but 
without fear. Their strength is tried to-day, though in 
a lesser matter. A Tory petition against the sitting 
Member for Derby was presented to-day. They would 
have brought it to the bar of the House, which was de- 
bated about an hour, and we rejected it by a majority of 
23s against 190. We look upon this as a stronger ques- 
tion against us than any they can make on their intended 
motion." 

" My dear, I have the greatest satisfaction in the 
thought of seeing you so soon. Think of me, and be- 
lieve that I am and always shall be, with the greatest 
tenderness, " Your affectionate husband, 

" D. R. 

" P. S. Your thpughts about not dining on the road 
' Indorsed "Nov. 30, 1742." 

' It was on election petitions, the merits of which were not at all re- 
garded, that the strength of parties was chiefly tried. A few months be- 
fore, Sir Robert Walpole had been turned out by an unfavorable division 
on the petition complaining of an undue election for Chippenham, (Jan. 
28, 1742.) 



DUDLEY RYDER. 155 

and making four days of it, fall in with what I wrote to 
you yesterday." 

I close my specimens of this conjugal correspondence 
with an extract from the last letter he wrote to her 
during this separation, which would be received by 
her as she stopped for the night on her approach to 
London ; — 

"Friday, Dec. 3. 

" My heart leaps for joy at the thought of the time 
of you return being so near. I can hardly think of any- 
thing else, except when business calls me off. — We had 
another attack to-day by a motion for a Place Bill. It 
seems principally calculated to abuse Sandys and his 
companions, the new comers, by forcing them to eat 
their own words of last session. However, they can 
■digest them with their places. We carried it in the 
negative by 221 to 196. This you will say is not a great 
majority. The truth is, some people are hard put to it 
to distinguish between this session and the last ; others 
are afraid of their boroughs ; others think it is a popular 
thing, and have a mind to seem patriots. So that many 
who are with us in other things deserted us here." 

The amiable lady to whom the letters was addressed 
was deeply afflicted by the loss of her husband, the Chief 
Justice ; but the disappointment in never wearing the 
coronet upon which she had received so many congratu- 
lations was no aggravation of her sufferings. Her ex- 
emplary piety triumphed over her grief for her bereave- 
ment, and she survived her husband for many years. 

I have already told how their son was at last en- 
nobled. His son Dudley, by a daughter of Terrick, 
Bishop of London, was a most distinguished statesman 
and orator, — filled high offices in the reigns of George 
HL and George IV. — was created Viscount Sandon and 
Earl of Harrowby, — and might have been Prime Minis- 
ter if he had pleased. The Chief Justice is worthily rep- 
resented by the present Earl, his great grandson, who 
after having long served in the House of Commons as 
member for the important commercial constituency of 
Liverpool, is adding in another House of Parliament 
to the splendor of the name he bears — so that old Sir 
Dudley must now rejoice over the entire fulfillment of 
his grandfather's prophecy. 



CHAPTER XXVII. 
LIFE OF CHIEF JUSTICE WILLES. 

BEFORE devoting myself to my last and most 
illustrious Chief Justice of the King's Bench, Lord 
Mansfield, I must beg leave to introduce two 
Chief Justices of the Common Pleas, each of whom re- 
fused the great seal of Great Britain, the one being the 
most ambitious lawyer of the i8th century, and the 
other the least ambitious lawyer of our judicial annals, 
— Chief Justice Willes, and Chief Justice Wil- 

MOT. 

I have no respect for the former, and I shall dispatch 
him very rapidly. Although a man of splendid abilities, 
he was selfish, arrogant, and licentious ; and, although 
at one time there was a strong probability that he would 
play a very important part in public life (in which case 
an interest would have been cast upon his early career), 
he died disappointed and despised. Among the bright 
legal constellations he twinkles a star of the tenth mag- 
nitude, and he does not deserve to be long examined by 
the telescope of the biographer. 

The Chief Justice himself affected to derive his name 
from Velius or Villus, and tried to connect his an- 
cestor with the Argonatus who carried off the GOLDEN 
Fleece ; — while his detractors preferred the etymology 
of VILIS or VILICUS, and insisted that if the individual 
of his race who first bore .a surname was not a villein, he 
was not higher than the bailiff of the lord of a manor. 
In sober truth, the Willes's were a respectable family of 
small estate, long seated in the county of Warwick. For 
centuries they had been content to plough their paternal 
acres, occasionally sending off a younger son to be an 
attorney or a county parson ; but they suddenly rose 
into distinction, for while the " Head of the House " (as 
he loved to call himself) was a Chief Justice, and almost 



yOHN WILLES. 157 

Lord Chancellor, his younger brother sat in the House 
of Lords as a Bishop.'" 

Of the lawyer, till he entered public life, it will be 
enough to relate that he was born in 1685 ; that he was 
educated at Lichfield Free Grammar School, and Trinity 
College, Oxford ; that he was called to the bar in 1707 ; 
that from his youth upward he showed a wonderful com- 
bination of steady application to business and striking 
gravity of manner with extreme profligacy of conduct ; 
and that his determination was to reach the highest 
honors of his profession at any sacrifice of money, of 
ease, of principle, and even of pleasure. 

His success at the bar was respectable, but not such 
as to enable him to rely on professional reputation. So 
he resolved to plunge into politics, and on the dissolu- 
tion of parliament in 1722 he declared himself a candi- 
date for Weymouth, long one of the most venal and 
most expensive boroughs in England. After a severe 
contest, which cost him more than all he had been able 
to save from his fees, he was returned, and joyfully took 
his seat in the House of Commons." 

As Sir Robert Walpole had gained undisputed power 
on the death of Lord Sunderland, Willes enlisted himself 
under the banner of the new minister, and hoped to gain 
favor not only by making himself useful in parliament, 
but by a rich stock of facetious stories, in which his 
patron took delight, and which, as the second bottle was 
going round, he could bring out with redoubled effect 
from his usual starchiness of demeanor. At first every 
thing turned up to his mind. Without making any dash- 
ing speech, he was serviceable to Government ; he as- 
sisted in carrying through the House of Commons 
the proceedings against Bishop Atterbury and the bill 
for doubly taxing Roman Catholics, — and he added to 
the popularity of the Government by distantly rivaling 
Sir Robert himself, after the ladies had withdrawn, in 
drawing forth loud roars of laughter from the squires 
who had been invited to dine at Chelsea. Accordingly, 

• The Right Rev. Edward Willes, D.D., successively Bishop of St. David's 
and of Bath and Wells, consecrated in 1742 — died in 1 773. 

' In subsequent pur laments he was returned at a small expense for the 
«lose borough of West '^ooe. 



rsS REIGN OF GEORGE II. \Miy~ 

before two sessions had expired, such merits were re- 
v/arded with a " Welsh wig ;" he was appointed " Second 
Justice of Chester," and he thought the great seal within 
his grasp. But, afterwards, his patience was long and 
cruelly tried, and many bright gleams of hope were suc- 
ceeded by the alternating gloom of despondency. When 
he had been eleven years in parliament he was still only 
"Second Justice of Chester." Nevertheless, he could 
not complain of being ill-used, for he did not expect to 
supersede Sir Philip Yorke, who had long been Attorney 
General ; and although the office of Solicitor General 
had twice become vacant, he did not deny the superior 
claims of Sir Clement Wearg and Mr. Talbot. One of 
these competitors was removed by a premature death,' 
another succeeded Lord Raymond as Chief Justice of 
the King's Bench, and the third obtained the great seal 
on the resignation of Lord King. 

Willes at last got the step which he thought assured 
him all else that he desired ; — and to crown his present 
felicity, at the same time that he was constituted At- 
torney General he was promoted from " Second" to be 
" Chief Justice of Chester," — the duties of law officer of 
the Crown, and of a Judge in this County Palatine and 
in the principality of Wales, not being considered in- 
compatible.' 

Soon after, it was thought that the Administration 
was in danger from a coalition, brought about by Lord 
Bolingbroke, between the Tories and the discontented 
Whigs. Their grand movement was an attack upon the 
Septennial Act, which the Tories had always strenu- 
ously opposed, and which Whigs not in office, nor likely 
to be, although they formerly supported it, had lately 
discovered to be highly unconstitutional. In the; famous 

' From "A Brief Memoir of Sir Clement Wearg," published in 1843, by 
his relative, George Duke, Esq., of Gray's Inn, barrister-at-law, he appears 
to have been a most learned, eloquent and excellent man. He died of a 
violent fever, in the prime of life, on the 6th of April, 1726, vifhen he had 
been three years Solicitor General. He was succeedet, by Talbot, after- 
wards Lord Chancellor. 

' Down almost to the time when these jurisdictions were abolished, Sir 
William Garrow and Sir John Copley held, at the same time, the offices of 
Attorney General and Chief Justice of Chester. We have now lost the 
professional joke of the prime minister baiting his rat-trap with Cheshire 
cluese. 



1737-] JOHN WILLES. 159 

debate on Mr. Bromley's motion for leave to bring in a 
bill to repeal it, Mr. Attorney General Willes, afraid of 
being speedily shorn of his new honors, made an extra- 
ordinary exertion, and delivered a speech which was 
very much applauded. I give a few extracts from it to 
show how such topics, which still annually come before 
us, were treated a hundred years ago : — 

" Gentlemen having been pleased to put us in mind 
of our ancient constitution ; but it has been so often 
varied and improved, that they must be puzzled to fix 
the time when it was in that perfect state which we 
ought at present to adopt and for ever abide by. Are 
we asked to go back to the wittenagemote, or to prelates 
and Barons, — without any representatives from counties, 
cities, or boroughs ? or to prelates, barons, and representa- 
tives of counties, cities, and boroughs, — sitting together 
in one and the same assembly? Rather than admire the 
constitution when unformed and weak, I would admire it 
in its strength and vigor. Therefore I admire it as I find 
it, and I would rather go on to improve it than mar the 
improvements which it has received. Let me observe 
that at the Revolution there was nothing in the Claim 
of Rights or in the Bill of Rights about annual or trien- 
nial parliaments. When we read of the advantage of 
' frequent parliaments,' we are to understand frequent 
sessions of parliament — not that the parliament is to be 
changed every session. We all know that the Triennial 
Bill was neither introduced nor promoted by the patrons 
of liberty or the real friends to King William's govern- 
ment. The object of the measure was to distress that 
good prince, and the bill when passed was found to be 
of dangerous consequence to the prosperity of the na- 
tion and. to the quiet of the subject. At last the Sep- 
tennial Act passed, which is the true medium between 
the unlimited common law prerogative of the Crown 
and the other extreme of statutably extinguishing every 
parliament after it has sat three years, whatever perils 
may arise in any particular crisis from there being no 
parliament, or from a general election. If King William 
had enjoyed the benefit of septennial parliaments, he 
would have carried on war and he would have negotiated 
peace with much greater advantage, he would have es- 



i6o REIGN OF GEORGE II. [1737. 

caped the treaties for partitioning the Spanish monarchy 
which have been so much objected to, and he would 
have been better able to humble the power of France 
and to secure the happiness of this nation. I have 
reason therefore to say that the constitution has now 
reached its highest perfection. The alleged power of 
corrupting a parliament which sits long, we may know 
to be imaginary from the fact that King Charles II. 's 
Long Parliament, which at first was called the Pensionary 
Parliament, and was disposed to make him absolute, at 
last became so refractory that he accused it of a design 
to dethrone him, and he abruptly and indignantly dis- 
solved it. Short parliaments lead to corruption. Cor- 
ruption is not of one sort only ; it appears in many 
shapes. An elector may be bribed without giving him 
money, and members of this House maybe bribed with- 
out getting any place or preferment from the Govern- 
ment. If, to please his borough and to secure his next 
election, a member votes against his judgment, is not 
this bribery, and bribery the most degrading and per- 
nicious ? An honorable gentleman says that septennial 
parliaments are necessary to support falling ministers. 
Sir, I can only say that I have been traveling lately in 
many parts of England, and, wherever I have been, I 
have found the present ministers held in high estima- 
tion ; insomuch tliat, when this parliament has sat out 
its seven years, I am convinced that another will be re- 
turned for seven years more, equally discerning, loyal, 
independent, and well-disposed as the present." 

Mr. Attorney's speech gained him much credit, al- 
though the victory was chiefly ascribed to Sir Robert 
Walpole's, — in which he drew such a character of Boling- 
broke that he made the Whigs ashamed of acting under 
him ; and by which, according to Coxe, he drove the 
disappointed intriguer abroad, in despair of ever re- 
covering any ascendancy in England.' 

When Willes had been Attorney General three years, 
the office of Chief Justice of the Common Pleas fell 
vacant, and he accepted it, — far from suspecting that he 
was thereby to be forever " shelved," but considering 

' 9 Tail. Hist. 394-479 ; Coke's Memoirs of Sir Robert V'alpole, p. 426 ; 
Lord Malion's History, ii. 264-272. 



1742.] JOHN WILLES. i6i 

that it would prove, as it had before done, a stepping- 
stone to the woolsack. He had hardly been installed in 
this intermediary dignity when he thought that his 
fondest expectations were to be instantly realized, all 
England being thrown into mourning by the sudden 
death of Lord Chancellor Talbot. To his unspeakable 
mortification, although he had continued in the good 
graces of the Prime Minister, and still played his part in 
retailing his old stories to the country squires, adding 
anecdotes of his own adventures, he was never once 
thought of for advancement on this vacancy. Whether 
Sir Robert Walpole dreaded that habits and conversa- 
tion which he could not openly censure — for they were 
very congenial to his own — might not be quite suitable 
to the grave magistrate who was to be placed in the 
"marble chair" and to preside over the general admin- 
istration of justice, I know not ; but he immediately 
offered the great seal to Lord Hardwicke, then Chief 
Justice of the King's Bench; and, upon this grasping 
aspirant trying to make too hard a bargain in demanding 
pensions and tellerships, he threatened to go to Faz- 
akerley, a professed Tory lawyer and suspected Jacobite, 
saying, as he took out his watch, " It is now twelve 
o'clock ; if by one you do not agree to my terms, — by 
two, Fazakerley will be Lord Keeper, and one of the 
staunchest Whigs in England." The treaty was in- 
stantly concluded ; and very probably there was a secret 
article in it that Willes should not even be promoted, as 
he might naturally expect to be, to the office of Chief 
Justice of the King's Bench; for Lord Hardwicke was 
jealous of him, hated him, and wished to be succeeded 
by some safe man, like Mr. Justice Lee, who never 
would be formidable as a rival. 

Willes henceforth entirely renounced all intercourse 
with Sir Robert Walpole, and entered into a political 
connection with the leaders of opposition, particularly 
with Lord Carteret. When the division on the Chip- 
penham election showed that a change of government 
must inevitably take place, he believed that the Chan- 
cellor would go out with the Prime Minister, and that 
his own elevation was at hand. But, to the surprise of 
mankind, Pulteney refused to take office himself, and 



i62 REIGN OF GEORGE II. [1742— 

consented to the Duke of Newcastle and Lord Hard- 
wicke — whom he had often abused so bitterly — still 
holding their places. 

The only game left to Willes was to try to create 
jealousies between the new section of the Cabinet and 
the old. With this view he strove to stir up Carteret to 
claim the premiership, and to engross all the patronage 
of the Government. But this most accomplished though 
most flighty statesman, intent on diplomatic negotia- 
tions and royal smiles, had no steady ambition, and neg- 
lected all those smaller cares by which alone party 
influence can be acquired or retained. On one occasion, 
Willes calling upon him to apply for an appointment, 
" What is it to me," he cried, "who is a judge, and who 
is a bishop? It is my business to make kings and 
emperors, and to maintain the balance of Europe." 
" Then," answered the Chief Justice, " those who want 
to be judges or bishops will apply to those who will con- 
descend to make it their business to dispose of judge- 
ships and bishoprics."' 

Willes, in fulfillment of his own prophecy, for some 
time cultivated the Pelhams, but found that ~ they were 
unalterably attached to Lord Hardwicke ; — and then he 
professed himself an adherent of Pitt. In this weary 
round he often sank into low spirits, and the sensual 
gratifications which had soothed his political disappoint- 
ments began sadly to pall upon him. 

At last, the dreams of power, in which alone his im- 
agination now luxuriated, seemed actually fulfilled. In 
truth, the grand object of his ambition was placed with- 
in his reach, and he lost it by his own gross mismanage- 
ment, so that he was left without the consolation of 
complaining of his evil fortune. 

When the Duke of Newcastle and Lord Hardwicke 
were driven to resign, the ministers who, for a short 
time, inadhesively formed the new cabinet under the 
nominal leadership of the Duke of Devonshire were 
favorably inclined to Sir John Willes, and adopted him 
as their principal legal associate, relying upon him to 
counteract the machinations of the VOLPONE, who, he 
said, had unjustly kept him out of the oiifice of Chan- 
' Horace Walp. Mem. of George II. i. 147. 



I7S6-] yOHN WILLES. 163 

cellor for twenty years.' But, on account of the prej- 
udices of the King, who had falsely been told that the 
Chief Justice of the Common Pleas had in him as little 
law as morality, there was a serious difficulty in at once 
conferring upon him the dignity to which he aspired. 
An arrangement was made that the great seal should be 
a short time in commission, that he should be first com- 
missioner, and that it should, ere long, be transferred to 
his sole custody, with the title of Lord Chancellor, or 
Lord Keeper, and a peerage. Accordingly, on the 19th 
day of November, 1756, he took his seat in the Court of 
Chancery, and saw the mace and the embroidered purse 
containing the great seal lying before him ; but he was 
galled by the thought that he enjoyed only divided 
empire, for Sir Sidney Stafford Smythe was on his right 
hand, and Sir John Eardley Wilmot on his left, with co- 
ordinate authority. 

Lord Chief Commissioner Willes did the business of 
the court with much ability, and a general expectation 
was entertained that he was to turn out an eminent 
equity judge. He likewise reformed the scandals of his 
domestic establishment, and every obstacle to his eleva- 
tion seemed removed. 

The horizon was for a time overcast, on the dismissal 
of Mr. Pitt and the dissolution of the Duke of Devon- 
shire's short and ill-concocted government ; but a brighter 
sunshine irradiated the steps of Sir John Willes when 
the famous coalition was completed between Mr. Pitt 
and the Duke of Newcastle. These chiefs, without 
feeling any attachment to him, were both contented, 
for the sake of convenience, that he should be admitted 
into the cabinet, and should be created Lord Chancellor. 
To please the King, they first offered the great seal to 
Lord Mansfield, knowing full well that he would decline 
it ; and likewise to Sir John Eardley Wilmot, from 
whom they were sure to receive a similar answer, though 
for very different reasons. The tender was then to be 

' " Lord Cliief Justice Willes was designed for Chancellor. He had been 
raised by Sir Robert Walpole, though always browbeaten by haughty 
Yorke, and hated by the Pelhams, for that very attachment to their own 
patron. As Willes's nature was more open, he returned their aversion with 
little reserve. He was not wont to disguise any of his passions." — Walp, 
Mem. Gca, II. i, 76. 



164 



REIGN OF GEORGE II. [i7S<5. 



made in due form, and with the King's express au- 
thority, to Sir John Willes but his Majesty was, as yet, 
in very ill humor, on account of his closet being stormed 
by the " Great Commoner," and he positively declared 
that no new peerage should then be created. The First 
Lord Commissioner was much nettled by hearing that 
the great seal had been hawked about when he had con- 
sidered that it was his own exclusive property. Further, 
knowing how it had been declined by all who were re- 
garded as capable of holding it, he gave himself very 
haughty airs, thinking that the game was irrevocably in 
his own hand. Therefore, under the disguise of dis- 
liking the proffered elevation, he talked of the comfort 
and security of the " cushion of the Common Pleas," dwelt 
upon the sacrifice which he was calUed upon to make, 
and positively refused to accept the great seal unless he 
had the promise of a peerage, which had been given to 
every Lord Chancellor and Lord Keeper since Sir Or- 
lando Bridgman in the reign of Charles IL' The con- 
ference was broken up ; but Willes, though very indig- 
nant, was perfectly confident that his terms must be 
acceded to, and he remained at home in the belief that 
he should speedily receive a summons to be sworn as 
Chancellor, with a request to know what title as a baron 
would be agreeable to him." 

Mr. Pitt, who had secured to himself unlimited power 
to carry on the war according to his own views, and an- 
ticipated his coming glory, was unwilling to run the risk 
of quarreling with the King on such a paltry point as a 
legal peerage ; and, instead of making any further effort 
to gratify Sir John Willes, he offered the great seal to 
Sir Robert Henley, who, belonging to the Leicester 
House, had hitherto been reckoned an enemy, but who 
was not likely to stand out for conditions, reasonable or 
unreasonable, and who, from his very moderate abilities, 

' He chose to forget Sir Nathan Wright in the reigns of William III. 
and Queen Anne. 

' A story was circulated, but I believe without any authority, that he 
had fixed upon the title of Lord Colchos ; that he meant to have the 
Akgo galley for his crest, a " fleece or " to be added to his arms, and two 
argonauts for his supporters. Horace Walpole merely says, in his usual 
epigrammatic style, — •' Willes proposed to be bribed by a peerage to be at 
the head of his profession ; but could not obtain it." Mem. Geo. 11. ji. 
aa6. 



1760.J JOHN WILLES. 165 

could never be formidable. Henley who had not ex- 
pected such an offer from the new ministry any more 
than to be made Archbishop of Canterbury, joyfully 
jumped at it, without saying a word about peerage, 
pension, or tellership ; and the arrangement was com- 
pleted the very same morning that it was iirst proposed. 
The Lord Keeper elect then thought that he could not 
do less than announce his appointment to the First 
Lord Commissioner, who had the custody of the great 
seal, and courteously arrange with him as to the con- 
venient time when the bauble might be transferred to 
him. Willes was at his villa, walking about in the 
garden, still chafed by the affront which he considered 
he had received, but still not doubting that the proper 
amende would be made to him. He knew that Henley 
could not well be the messenger for that purpose, but 
he had not the most distant conception that his visitor 
had a personal interest in the controversy ; and, without 
leaving any opening for the intended communications, 
he burst out into a statement of his grievances, thus 
concluding : " Would any man of spirit have taken the 
seals under such circumstances? would you, Mr. At- 
torney?" Henley, thus appealed to, gravely answered, 
" Why, my Lord, I am afraid it is rather too late to 
enter into such a discussion, as I have now the honor 
of waiting upon your Lordship to inform you that I have 
actually accepted them." 

Poor Willes never held up his head again ; — and he 
received another blow, which utterly crushed him, when 
Lord Keeper Henley, preparatory to the trial of Lord 
Ferrers for murder, was, without solicitation, created a 
peer, that he might preside on the occasion as Lord 
Steward. 

The death of George IL, the prelude to so many 
changes, brought no consolation to the heart-broken 
Chief Justice ; for Henley, from his long connection with 
Leicester House, was a personal favorite with the new 
Sovereign, and was not only allowed by him to get tipsy 
after dinner instead of holding evening sittings, but was 
raised to be Lord Chancellor from being only Lord 
Keeper, and was created Earl of Northington.' Friends 

' Lives of the Chancellors, vol. v ch. cxL 



1 66 REIGN OF GECRGE II. [1746— 

in vain attempted to soothe the wretched Chief Justice, 
by reminding him of the vanity of worldly greatness, by 
pointing out to him that he ought to be satisfied with 
the measure of prosperity he had enjoyed, and by ad- 
vising him, in estimating his success in life, to think 
rather of the many competitors whom he had surpassed 
than of the few who had been enabled to surpass him. 
But he answered in the words of Sir Christopher Hatton 
to Queen Elizabeth, " All will not do : no pulleys will 
draw up a heart cast down." For several terms before 
his death he was unable to go into court. He languished 
till the 15th of December, 1761, when he expired at his 
house in Bloomsbury Square, in the 76th year of his 
age. He was buried with his ancestors in the family 
vault at Bishop's Ickington, in Warwickshire. 

I am afraid I may be blamed for neglecting his judi- 
cial decisions, but I cannot discover any important points 
which he ruled, although he presided for so long a period 
in one of the superior courts in Westminster Hall. 
There is said to have been very little business in the 
Court of Common Pleas in his time ; a circumstance 
thus accounted for by Horace Walpole : — 

" He had great quickness of wit, and a merit that 
would atone for many foibles — his severity to, and dis- 
couragement of, that pest of society, attorneys. Hence 
his court was deserted by them, and all the business 
they could transport carried into Chancery, where Yorke's 
filial piety would not refuse an asylum to his father's 
profession." ' 

I believe that, notwithstanding his immoralities, he 
was a sound lawyer, that his administration of justice 
was pure and impartial, and that his fame as a magis- 
trate would have been splendid in proportion to the op- 
portunities enjoyed by him of showing his powers and 
acquirements. He either had extraordinary authority 
with his puisnies, or extraordinary discretion in yielding 
to the best opinion propounded by any of them, and in 
persuading the others to acquiesce in it. A case occur- 

' Mem. Geo. II. i. 76. This is a spiteful allusion to Lord Hardwicke 
having been the son of an attorney. But the suggestion that the business 
which ought to have come into the Common Pleas was done in the Court 
of Chancery, shows that the memoir-writer is entitled to very little weicht 
on such a subject. 



*7S7-J JOHN WILLES. 167 

ring in which the Court was divided, he said, " I think 
myself unfortunate when I differ in opinion with any of 
my brethren : however, I have the pleasure to reflect 
that, in the twenty years I have sat here, this is but the 
third time that there has been any difference of opinion 
between any of us." They appear to have been unan- 
imous ever after.' 

Chief Justice Willes sat along with the other Judges 
on the trial of the rebels at St. Margaret's Hill, South- 
wark ;° but he was not called upon to take any leading 
part, — Lee, Chief Justice of the King's Bench, being 
present ; and he had nothing to do with any other state 
prosecutions. 

The most interesting case which ever came before him 
was that of Elizabeth Canning, which divided and agi- 
tated the country almost as much as the Catholic Ques- 
tion or the Reform Bill in more recent times. He very 
sensibly agreed with the jury, who convicted her of per- 
jury; he refused her a new trial, and he proposed that 
she should be transported beyond the seas for seven 
years. Generally, the Lord Mayor and aldermen, who 
are in the commission at the Old Bailey, implicitly sub- 
mit to the opinion of the judges, as well in awarding 
punishment as in disposing of questions of law; but, on 
this occasion, Alderman Sir John Barnard moved an 
amendment, " that the punishment should be only six 
months' imprisonment," when a poll was taken, and the 
sentence proposed by the Chief Justice was carried by a 
majority of eleven (including six judges) against eight 
{who were all aldermen). Willes appears to have con- 

' The case referred to is Buxton v. Mingay, 3 Wilson, 70, well known 
and very distasteful to medical men ; the question being, " whether a sur- 
geon is an inferior tradesman within the meaning of 4 & 5 W. & M. c. 23, 
s. iq?" The Chief Justice took the liberal side, saying — "I am clearly of 
opinion the legislature could never intend that a surgeon is ' an inferior 
tradesman,' or a ' dissolute person ;' although he may sport without being 
qualified to kill game." But, said Bathurst, J., — " I can never be of opinion 
that the legislature intended to permit every master of every little mechanic 
trade to neglect his trade and go a-hunting. I am of opinion that every 
tradesman is inferior who is not qualified, and that is the only line we can 
draw between inferior and superior." Clive, J., concurred with him. I 
know not in what category they would have placed " an unqualified jiidge ;* 
but I should call him " an inferior tradesman." 

* 18 St. Tr. 329. 



i6^; REIGN OF GEORGE II. [i7S3- 

duc\\'.,l himself on this occasion with firmness, good 
temp ■;.-, and dignity.' 

He auJ nothing to wipe off the reproach cast upon the 
English bar fo*- a contempt of literature ; for he not only 
never wiote a page for the press in prose or rhyme, but 
he did not at all mix with men of letters, and his talk 
was either about law or lewdness. I am sorry to say that 
the accounts handed down to us of his private life are 
lamentably unfavorable as far as morality is concerned. 
Even according to the low standard which then pre- 
vailed, he was grossly peccant ; and, however little cen- 
sorious the age might be, his conduct seems to have 
been severely condemned. Although a married man,, 
with a grown-up family, there were violations of deco- 
rum under his own roof which transpired and gave very 
general offense. Every memoir-writer who notices him 
gives the following anecdote, which, therefore, I may not 
omit. A dissenting clergyman, shocked by the rumors- 
which he heard of Lord Chief Justice Willes's domestic 
establishment, called to remonstrate with him, and, if 
possible, to stir him up to repentance. After some allu- 
sions, which, though intelligible enough, the Chief Jus- 
tice pretended not to understand, this dialogue ensued : 
— Minister : " To come to the point, then, my Lord, they 
say that one of your maid-servants is now with child." 
Chief Justice : " What is that to me ?" Minister: "But,, 
my Lord, thev say that she is with child by your Lord- 
ship !" Chief Justice : " What is that to you ?" " 

John, his eldest son, sat in several parliaments for 
Aylesbury and Banbury, but gained no distinction ; and 
Edward, his second son, who was bred to the bar, al- 
though for some time Solicitor General and a Puisne 

' IQ St. Tr. 262-694. This is one of the most extraordinary cases of 
popular delusion on record. Although the romantic story which Elizabeth- 
Canning had told of being stolen by a gipsy woman, whom she tried to 
hang for the purpose of concealing her own elopement with a lover, was 
disproved by the clearest and most irrefragible evidence, and by the wholly 
contradictory accounts which the girl herself had given of it, more than 
half the nation stood up for, and believed in her innocence ; and innumer- 
able pamphlets were published for her, as well as against her. 

' Horace Walpole, who relates the story, says that, in addition to " an un- 
bounded passion for women," he was "notorious iax gaming ;" but I do 
not find tliis imputation cast upon him by any other writer, and it is wholly 
inconsistent with his regular applicatior to business. See Mem. Geo. II. 
i.76. 



JOHN WJLLES. 



169 



Judge of the King's Bench, was of slenu«r intellect, in- 
somuch that once, when pleading a cause, and being 
checked for wandering from the subject, he exclaimed, 
" I wish you would remember that I am the son of a 
Chief Justice ;" upon which, old Mr. Justice Gould an- 
swered with much simplicity, " Oh, we remember your 
father, but he was a sensible man." 

Chief Justice Willes's heirs in the male line have long 
been extinct, but many distinguished persons still flour- 
ishing are descended from him through females. If by 
good luck he had actually reached the woolsack, this 
descent would have been considered a great honor ; but 
it is difficult to say why there should have been such a 
difference merely from his having pronounced a certain 
number of equitable decrees, good or bad, and having 
been commemorated in several volumes bound in calf- 
skin and entitled " REPORTS TEMPORE LORD CHAN- 
CELLOR WiLLES." Had he suspended his claim to a 
peerage, all this glory, by which the eyes of lawyers are 
dazzled, would have been showered down upon him. 




CHAPTER XXIX. 

LIFE OF CHIEF JUSTICE WILMOT. 

WILMOT, a succeeding Chief Justice of the Com- 
mon Pleas, enjoyed the remarkable distinction 
of being a lawyer without ambition, and more 
than once refused the great seal, — not from any haggling 
about the terms on which he should accept it, nor from 
any dread of its precarious tenure, or calculation that he 
might enjoy more power and wealth by remaining in the 
position which he occupied, but from a genuine con- 
tempt of power and of wealth as well as of titles, and an 
ardent love of leisure, repose, and obscurity. Although 
he certainly was altogether free from the last infirmity 
of noble minds, and of the sin by which the angels fell, 
we may lament that he never displayed those high as- 
pirations and heroic efforts to be of service to others 
which make ambition virtue. 

John Eardly Wilmot was the second son of Robert 
Wilmot, a gentleman of respectable family and moderate 
fortune in the county of Derby. His mother was 
daughter and co-heiress of Sir Samuel Murrow, a War- 
wickshire baronet. He was born on the i6th of August, 
1709. Having received the first rudiments of his educa- 
tion at a school in Derby, he was sent to the free school 
at Lichfield, under the tuition of Mr. Hunter, who is 
celebrated for having flogged seven boys who afterwards 
sat as judges in the superior courts at Westminster at 
the same time.' Samuel Johnson, who had likewise 
been subjected to his flagellation, gave this account of 
him : — " The head master was very severe, and wrong 
headedly severe. He used to beat us unmercifully ; and 

' Among these, besides Wilmot, were Lord Chancellor Norlhington, Sir 
Thomas Clarke, Master of the Rolls, Chief Justice Willes, and Chief Baron 
Parker. Lord Mansfield is generally included in the list ; but he never saw 
the city of Lichfield till he had been called to the bar. 



t724-] JOHN EARDLY WILMOT. 171 

he would beat a boy equally for not knowing a thing or 
for neglecting to know it. He would call up a boy and 
ask him Latin for a candlestick, which the boy could not 
expect to be asked. While Hunter was flogging his 
boys unmercifully, he used to say, ^ And this I do to save 
you from the gallows.' "' However, under such harsh 
discipline young Wilmot, like young Johnson, became 
an excellent Latin scholar, and was imbued with a love 
of learning. It is remarkable that, although they were 
several years class-fellows at Lichfield, there never 
seems to have been the slightest intercourse between 
them in after-life ; but the Chief Justice used frequently 
to mention the Lexicographer as ' a long, lank, lounging 
boy, whom he distinctly remembered to have been pun- 
ished by Hunter for idleness." 

When David Garrick, who was at the same time a 
very little boy in the lowest form, made his first appear- 
ance in Goodman's Fields, in October, 1741, Wilmot 
went to applaud him, and, having often afterwards gone 
to admire him in his various parts, was present at his 
last performance at Drury Lane in June, 1776, when he 
took a final leave of the stage ; but there was no private 
intimacy between them, notwithstanding David's passion 
for legal dignitaries, which made him pride himself so 
much upon his friendship with Lord Camden and Lord 
Mansfield.' This was probably Wilmot's fault, for he 
was not only afraid of being distinguished himself, but 
he wished to avoid those who had gained distinction. 

After he had been some years under Hunter at Lich- 
field, the better to prepare him for the University, he 
was removed to Westminster School ; and here he ap- 
plied diligently to his books, without ever mixing in the 
amusements of his schoolfellows. 

He spent the next four years as a recluse student at 
Trinity Hall, Cambridge. His ruling passion was to 
enter the Church, in the hope of obtaining a small liv- 
ing, and spending his days in a remote part of the king- 
dom, conversing only with the peasants who might be 

' Boswell, i. 21, 22. Johnson had so high an opinion of the good effects 
of such severity, that when he heard of a schoolmaster having abolished 
flagging, he exclaimed, " I am afraid that what his boys gain at one end 
they will lose at the other." 

' Bo5well, iii. 336 



i7i REIGN OF GEORGE II. [1742— 

under his pastoral care. His father, however, who ap- 
preciated his vigorous talents and his solid acquire- 
ments, would by no means agree to this scheme, and 
insisted on his entering the profession of the law. The 
dutiful son submitted, though reluctantly, and, before 
he left Trinity Hall, was initiated in the Roman Civil 
Law — a study for which this place of education has been 
always renowned, and to which he afterwards ascribed 
his proficiency in the Common Law of England. 

In the mean while he kept terms in the Inner Temple, 
and after three years' residence there he was called to 
the bar. We are left entirely in ignorance of the plan 
of study which he pursued, except it was solitary; but 
we know that, without going into an attorney's office,, 
or attending much in court, or appearing at the " Read- 
ings," which were still kept up, he rendered himself a 
consummate jurist. Instead of being vain of his acquire- 
ments, he was earnestly desirous of concealing them ; 
as if afraid that the attorneys, hearing of his familiarity 
with black-letter learning, should send him retainers.' 
He was exceedingly successful in gaining his wishes, and 
for many years he was allowed to remain unmolested. 
But going the Midland Circuit, in spite of all his efforts, 
he had a little business from family connections in his 
own county : avoiding display as much as possible, he 
was on several occasions compelled to show what there 
was in him, — and by and by, at the Derby Assizes, he 
was in every cause. Still he contrived to preserve his 
obscurity in London, till, arguing some demurrers and 
new trials in causes from his circuit, he was at last be- 
trayed to Westminster Hall as a deep lawyer and pow- 
erful advocate. 

Sir Dudley Ryder, the Attorney General, then ap- 

' There was a valued friend of mine, now no more, who went the Oxford 
Circuit ior years pour passer le temps, but who had a horror, which was well 
known, of being professionally employed. At last he affrontrd an attorney 
by making him rather unceremoniously surrender a place in court when a 
very interesting trial was coming on, saying that " barristers only were en- 
titled to sit there." The retreating attorney was heard to mutter, "I will 
have my revenge of him." So, the same night, he sent a brief in an im- 
portant cause to his antagonist ; who returned it with a messsge that he had 
been sent for on urgent business to London. The frightened barrister left 
the assize town early next morning, and never again appeared upon the 
circuit. 



*7S2-] JOHN EARDLY WILMOT. 173 

pointed him " Treasury Devil ;" and, deriving important 
aid from his services, and being very desirous to bring 
him forward, mentioned him to the Lord Chancellor as 
a man who might be an ornament to the profession, and 
would one day show himself qualified for the highest 
judicial station. In consequence he was offered a silk 
gown. Secretly resolved to refuse it, he wished to have 
some countenance in the opinion of a friend whom he 
pretended to consult, — and to whom, after very clearly 
disclosing his inclination, he said : " Consider it well, 
and tell me what you think of it, for when I have once 
hoisted the sail I cannot take it down again : therefore 
it requires a proper consideration and digestion in every 
respect. The withdrawing from the eyes of mankind 
has always been my favorite wish ; it was the first and 
will be the last of my life. His friend advised him "to 
hoist the sail, sure of a trade wind" but, against all re- 
monstrances, he said he would not go within the bar to 
•contend with the King's Bench leaders. It was then 
proposed to him that, if he would take the coif, he 
should immediately have the rank of King's Sergeant ; 
the encouraging remark being added that, " in the drowsy 
•confines of the Common Pleas he might remain without 
any unpleasant collision or notoriety." But he declared 
his immutable determination " to live and die in a stuff 



»» 1 



^own. 

He was, sorely against his will, obliged to lead for the 
•defendant in an action for crim. con. falsely brought 
against an old school-fellow, who insisted on having him 
for his counsel. As the trial proceeded, he got over his 
nervousness, and delivered an excellent address, which 
•carried the verdict. The parties living near Lichfield, 
David Garrick took a lively interest in the result, and 
attended in court, planting himself in a snug corner 
where he expected to remain unobserved. The follow- 
ing is the account he delivered of the performance of 
his old school-fellow : — 

" There appeared much contradiction and confusion in 
the evidence given by the witnesses, till at length rose 
Mr. Wilmot, who immediately explained the v.'hole in 

' Some accounts say that he called this his Domino, and that, like Rabe- 
lais, he repeated the text " Beati sunt qui moriuntur in Domino." 



174 REiGN OF GEORGE IT. [1754. 

so animated a manner as to charm as well as inform every 
one who heard him. I was delighted with the wit and 
sprightliness with which he unraveled the affair, — plum- 
ing myself upon being quite private and unnoticed in so 
great a crowd, and little thinking that I should be soon 
brought upon the stage myself. But the counsel, having 
developed the plot which had been laid against his client, 
observed, ' In short, gentlemen of the jury, it is nothing 
more than the story' of The Intriguing Chambermaid 
and The Lying Valet.' ' And, immediately casting his 
sparkling eye upon me in my retired corner, in a mo- 
ment he drew the whole notice of the Court upon me, 
and I thought I should have sunk into the earth." 

Horace Walpole relates, that, appearing at the bar of 
the House of Commons as counsel in the Wareham 
election, he was reprimanded by Pitt, who said that 
"he brought with him the pertness of his profession;" 
and that, being prevented by the Speaker from replying 
in his own vindication, he threw down his brief, and de- 
clared that " he never would plead there again." " But 
I doubt whether Wilmot ever was in this line of prac- 
tice, and I am convinced that he was not the man to wish 
to gain iclat by such a conflict. 

We certainly know that he had the opportunity of re- 
venge if he felt injured, but that' he declined it. An 
offer was made to him of a seat in the House of Com- 
mons free of expense. Such a lucky chance — although 
lawyers, when Queen Mab gallops over their fingers, 
dream of it still more than of fees — he despised. He 
equally disliked the notion of making a speech either as 
a patriot or as a courtier : he might have remained silent 
in the House, but he foresaw that his health would be 
proposed as one of the members for the county, and that 
wherever he appeared he would be asked for a frank. 
The notion suggested to him that parliament might 
speedily make him a law officer of the Crown, filled him 
with consternation. 

For ever to avoid all such perils and solicitations, he 
now took the decisive step of abandoning Westminster 
Hall altogether, and settling in his native county as a 

' These two farces, written by Garrick, were then acting with great ap- 
plause. > Mem. Geo. II. ii. iot". 



1754-] JOHN EARDLY WILMOT. 175 

provincial counsel, — which, as he had been disappointed 
in his wish of being a country curate or vicar, offered 
him the prospect of almost equal seclusion. His father 
had left him a small patrimony, producing some hun- 
dreds a year; and he had married Sarah, the daughter 
of Thomas Rivett, Esq., of Derby, afterwards repre- 
sentative of that borough in parliament, with whom he 
had received a small portion yielding a few hundreds 
more.' Accordingly, he sold his chambers, took a house 
in Derby, and settled there with his family, never ex- 
pecting to see persons of more worship than mayor of 
the town, or churchwardens who might come to consult 
him respecting the settlement of a pauper. 

Near a twelvemonth passed over him and found him 
contented and happy in his retreat, — when, one fine 
spring morning, he received official information that his 
Majesty had been pleased to appoint him a Justice to 
hold Pleas before his Majesty himself — or, in other 
words, a Puisne Judge of the Court of King's Bench. 
This had been preceded by a rumor, which had reached 
Derby, that such an appointment was in contemplation ; 
but this rumor he had wholly disregarded, as he not 
only never had solicited the appointment, but he had 
never been consulted about it, and it had never entered 
his imagination. 

At first he declared that nothing should induce him 
again to revisit the smoke and noise of London, — but 
being told that, independently of all consideration of 
his increasing family, it was his duty to submit himself 
to the King's pleasure and to serve the public according 
to the best of his ability, he consented to allow the pro- 
posed honor to be thrust upon him. This was the doing 
of Sir Dudley Ryder, now Chief Justice of the King's 
Bench, who, on the vacancy occasioned by the death of 
Sir Martin Wright, was anxious to have by his side his 
old Devil, in whom he so much confided. Accordingly, 
in Hilary Term, 1755, Wilmot, having been called Ser- 

' This marriage took place in April, 1643, when the venerable Hough, 
Bishop of Worcester, then ninety, two years of age, writing to an aunt of 
the future Chief Justice, says, " I am much pleased that Mr. Eardly Wilmot 
has chosen a wife whose character you approve : 'tis an argument of his 
good sense that he looks not after money in the first place ; for, if God 
gives him life and health, he cannot fail making h;s fortune." 



176 REIGN OF GEORGE II. [1755- 

geant, and knighted, took his seat as one of the Judges 
of the Court of King's Bench. 

The appointment, although grumbled at by some pert 
practitioners who thought they were slighted by being 
passed over, was soon justified by the admirable manner 
in which the new Judge performed his duties. As un- 
ostentatious as ever, he still strove to shrink from obser- 
vation ; but, at times, he, in spite of himself (as it were), 
delivered pithy and luminous judgments, — and often it 
was observed that, by a hint, a whisper, or a look, he 
guided his brother judges — insomuch that, like one of 
his predecessors, he was compared to the helm which, 
itself unseen, silently keeps the vessel in her right 
course. 

Not insensible to the respect which he created and 
the service he rendered, he was nearly reconciled to his 
new mode of life, when he was thrown into deep distress 
by the sudden death of his friend Lord Chief Justice 
Ryder while a patent was passing for ennobling him. 

A judicial crisis followed, which lasted some months; 
Mr. Murray, the Attorney General, claiming the office 
of Chief Justice, and the Duke of Newcastle trying, by 
solicitations and bribes, to keep him in the House of 
Commons. During this interregnum Sir Eardly Wilmot 
wished earnestly that he were again a provincial counsel 
in his small house at Derby, laying down the law to 
parish officers ; for he was obliged often to take the lead 
in the Court of King's Bench, and, gaining great credit, 
notwithstanding his desire to be quiet, a rumor was 
spread, which reached him, that if Murray could be pre- 
vailed upon to forego his claim he himself was to be 
promoted to be Chief Justice. The two senior puisnies 
were Sir Thomas Denison and Sir Michael Foster, and 
they, though respectable men, were nearly disabled by 
age and infirmity. 

To Wilmot's unspeakable relief, Murray prevailed, 
and, under the title of Lord Mansfield, took his place 
as Chief Justice of the Court of King's Bench. These 
two profound lawyers and accomplished scholars, al- 
though of essentially different temperament, always 
cordially co-operated in the discharge of their judicial 
duties; and Wilmot, instead of feeling any envy, was 



I7S7.J yOHN EARDLY WILMOT. 177 

delighted that he was at liberty to act a very subordinate 
part. 

He had soon to encounter anew the perils of promo- 
tion. On the resignation of Lord Hardwicke, the great 
seal was put into commission, and he was named as a 
commissioner along with Lord Chief Justice Willes and 
Sydney Stafford Smythe. He had never drawn a bill 
or answer in Chancery in his life, — but he was intimately 
acquainted with the Civil Law, and had scientifically 
studied every branch of English jurisprudence. All other 
cares being laid aside, he now devoted himself to Equity ; 
and the old draughtsmen were obliged to acknowledge 
that, considering his defective training, he seemed to 
have by intuition a wonderfully correct notion of it. 
The rest of the profession and the public gave him un- 
qualified praise, and a general expectation was enter- 
tained that he would soon be appointed Lord Chancellor 
or Lord Keeper, for he was not only much handier in 
dealing with the cases which came before the commis- 
sioners than either of his colleagues, but he was con- 
sidered fitter for the office than Henley the Attorney 
General, or any one else who could pretend to it. 
Frightened out of his wits by the apprehension of the 
much-coverted bauble being offered to him, he thus 
wrote to his brother. Sir Robert Wilmot : — 

"The acting junior of the commission is a spectre I 
started at, but the sustaining the office alone I must and 
will refuse at all events. I will not give up the peace of 
my mind to any earthly consideration whatever. Bread 
and water are nectar and ambrosia when contrasted with 
the supremacy of a court of justice." 

For this turn there was not any serious ground for 
the alarm, for the promotion was only slightly proposed 
to him, and his refusal of it was easily acquiesced in, 
Political convenience prevailed over a strict considera- 
tion of the good of the suitors, and,— Chief Justice 
Willes having ruined himself by standing out for a 
peerage, — to please the Leicester House party, the great 
seal was. delivered to Sir Robert Henley, afterwards 
created Earl of Northington. 

The ex-commissioner gladly returned to the King's 
Bench, resolved never again, either jointly with 



178 REIGN OF GEORGE II. [1757" 

others or singly, to touch the " pestiferous piece of 
metal."* 

For ten years he went on as a Puisne Judge of the 
King's Bench, only longing for some situation in which 
he might be less subject to public gaze. On one occa- 
sion, while presiding at the Worcester Assizes, he had 
been very nearly released from all dread of further pro- 
motion in this world. The following letter to his wife 
gives the particulars of his danger and escape : — 

" I send this by express, on purpose to prevent your 
being frightened, in consequence of a most terrible ac- 
cident at this place. Between two and three, as we 
were trying causes, a stack of chimneys blew upon the 
top of that part of the hall where I was sitting, and beat 
the roof down upon us; but, as I sat up close to the 
wall, I have escaped without the least hurt. When I 
saw it begin to yield and open, I despaired of my own 
life and the lives of all within the compass of the roof. 
Mr. John Lawes is killed, and the attorney in the cause 
which was trying is killed, and I am afraid some others ; 
there were many wounded and bruised. It was the 
most frightful scene I ever beheld. I was just beginning 
to sum up the evidence, in the cause which was trying, 
to the jury, and intending to go immediately after I had 
finished. Most of the counsel were gone, and they who 
remained in court are very little hurt, though they 
seemed to be in the place of greatest danger. If I am 
thus miraculously preserved for any good purpose, I re- 
joice at the event, and both you and the little ones will 
have reason to join with me in returning God thanks for 
this signal deliverance : but if I have escaped to lose 
either my honor or my virtue, I shall think, and you 
ought all to concur with me in thinking, that the escape 
is my greatest misfortune. 

" I desire you will communicate this to my friends, 
lest the news of such a tragedy, which fame always mag- 
nifies, should affect them with fears for me. 

" Two of the jurymen who were trying the cause are 
killed, and they are carrying dead and wounded bodies 
out of the ruins still." 

In another letter he says, " It was an image of the last 
' Description of the great seal by Lord Keeper Guilford. 



1766,] JOHN EARDLY IVILMOT. 179 

day, when there shall be no distinction of persons, for 
my robes did not make way for me. I believe an earth- 
quake arose in the milds of most people, and there was 
an apprehension of the fall of the whole hall." 

His safety is supposed to have been entirely owing to 
his presence of mind, which induced him to remain com- 
posedly in his place till the confusion was over — a 
circumstance which, with his usual modesty, he sup- 
presses. 

He twice attempted, ineffectually, to exchange his 
present office for that of Chief Justice of Chester, which 
was of less emolument, but would have withdrawn him 
entirely from London ; so careless was he of present ap- 
plause, or of the fame to be acquired as a great magis- 
trate. 

Afterwards, to the surprise of all who knew him, he 
did accept a distinguished "supremacy" in Westminster 
Hall ; but he truly said that " this was under duress." 
On the formation of the first Rockingham administra- 
tion, when Lord Camden became Chancellor, he resolved 
to have Sir Eardly Wilmot to succeed him as Chief Jus- 
tice of the Common Pleas. A rumor of this promotion 
having reached the person so selected as the worthiest, 
he wrote to his brother, Sir Robert — " Is it not possible 
for you to divert a measure which will be so injurious to 
my peace if accepted, and so much censured if refused ?" 
But he received no comfort from the following an- 
swer : — 

" The curtain is now drawn up ; the actors are coming 
on the stage. I understand you have a part which, 
though not your own choice, has been assigned to you 
in so distinguished, so honorable a manner that you cer- 
tainly ought, and gratefully, to accept it. 'Tis a duty 
which you owe to the King, to your friends, to your 
family, to yourself; and the duty required is neither 
hard nor unprofitable. Lord Camden claims the sole 
merit of your advancement ; Lord Shelburne's friend- 
ship for you may have had its weight ; Lord Northing- 
ton has likewise, probably, promoted the measure. 
Their motive is your eminent abilities in your profes- 
sion, your extensive knowledge, your acute and deep 
penetration, your sound judgment, your principles in 



i8o REIGN OF GEORGE II. [1766. 

favor of liberty, your unspotted character, and your 
being in every respect the most fit and proper person 
for that station. I am clearly of opinion that your re- 
move to the Common Pleas will be a fortunate and 
happy event. You will, at all events, be a permanent 
pillar, though the new ministry, as it probably will, 
topple down. Every mortal says how honorable it 
is for you to have no competitor. The whole town 
seems interested and pleased with the event, and the 
hopes of mankind would be disappointed if you rejected 
the public voice. You shall have free scope to write, or 
talk, or scold as much as you please, to me. Sit but 
serene in your Chief Seat, and out of it you shall rage 
like Boreas." 

But when Lord Camden's letter reached Sir Eardly, 
announcing that the King had graciously appointed him 
Chief Justice of the Common Pleas, his horror of pro- 
motion returned in full force. He was then on the 
Western Circuit; and he showed to Mr. Justice Yates, 
his brother judge, a letter he had written to refuse, with 
all respect and gratitude, the honor intended for him. 
This sensible and warm-hearted man, having in vain 
used many arguments to combat his resolution, at last 
made a little impression by urging that, as the Common 
Pleas had no criminal jurisdiction, and no state trials, 
a Chief there might be quieter and less observed than a 
Puisne in the King's Bench, — where Wilkes's outlawry 
was agitated, and " libel " was the staple commodity. 
He then, with his own hand, wrote a letter of accept- 
ance, addressed to the Chancellor in Wilmot's name,. and 
by gentle force induced him to sign it. 

At the end of the circuit the new Chief Justice was 
sworn in as Chief Justice of the Common Pleas, and re- 
ceived the following congratulatory epistle from the 
friend whose duress had compelled him to suffer this 
elevation : — 

" Clifton, Aug. 30, 1766. 

" My dear Lord Chief Justice,— I have now the satis- 
faction of addressing my friend by the title I so ardently 
wished him ; and, blessed as you are with the liveliest 
feelings of a friendly heart (one of the greatest blessings 
that man can enjoy), don't you envy me the joy I feel 



I766.J JOHN EARDLY WILMOT. i8i 

from this event ? I should, indeed, have been heartily 
chagrined if you had missed it ; and, had the fault been 
your own, should have thought you exceedingly blam- 
able. My casuistry would then have been staggered 
indeed, and would have found it a difficult point to ex- 
cuse you. But now it is quite at peace and entirely 
satisfied. You do me great honor in rating it so high, 
and I am sure you speak from the heart. It is the 
privilege of friendship to commend, without the least 
suspicion of compliment : and I shall ever receive any 
approbation oi yours with superior satisfaction. But no 
man breathing can have a surer guide or a higher sanc- 
tion for his conduct than my friend's own excellent heart.; 
Of this the very scruple you raised would alone have 
convinced me if I had no other proofs. I have not the 
least doubt that you will find your new seat as easy as 
you can wish, and all your coadjutors perfectly satisfied. 
There is but one of them that could entertain any 
thoughts of the same place for myself; and as he knows 
that in the present arrangement he had not the least 
chance of it, I dare say he will be pleased to see it so 
filled. And as to the rest of the profession, I can affirm 
with confidence (for you know I have but lately left the 
bar, where I had a general acquaintance with the senti- 
ments of the Hall), that no man's promotion would have 
given so universal satisfaction as yours. I repeat this to 
you because it certainly must give you pleasure. Success 
is never more pleasing than when it is gained with honor 
and attended with a general good will. It will rejoice 
me highly to shake your hand before I go northwards ; 
and if I knew what day you would be at Bath, I would 
give you the meeting there. I long to hear a particular 
detail of everything that has passed. 

" Your most affectionate friend, 

"J. Yates." 

Nauseated by the formal and fulsome letters addressed 
to him on this occasion, he was much pleased with the 
following from the celebrated " Commentator on the 
Laws of England," with whom he had always been on 
terms of familiarity and friendship, and who had himself 
fair pretensions to the promotion : — 

" My Lord, — Among the many congratulations you 



i82 REIGN OF GEORGE III. [1770— 

receive upon a promotion which every body is pleased 
with, even in these times of division, there are none 
more sincere than those which come from your Lordship's 
acquaintance, who have an opportunity of contemplating 
your private as well as public character. As your Lord- 
ship has been pleased to honor me with that advantage 
in a degree that has laid infinite obligations upon me, 
you will believe that it is with real pleasure I felicitate 
both your Lordship and Westminster Hall on an event 
that does honor to both. I am, &c., 

" W. Blackstone." 

The prospect held out to him of a quiet life in the 
Common Pleas was realized, and he continued to repose 
upon the " cushion " there without any thing to disturb 
him till the terrible ministerial crisis in the beginning of 
the year 1770. Lord Chatham having then unexpectedly 
reappeared upon the stage, Lord Camden's dismissal 
was only deferred till some lawyer of decent character 
could be prevailed upon to consent to be his successor. 

The first attempt was made upon Wilmot ; and, as he 
happened to be in attendance in the House of Lords, 
the Duke of Grafton, little dreading a rebuff, came up to 
him, and, pointing to the great seal, said, " There it is, 
Sir Edrdly ; you shall have it in your possession to- 
morrow." Sir Eardly shook his hand and begged to be 
excused. The consequence was, the pressure upon 
Charles Yorke, to which that unhappy man fatally 
yielded. Immediately after his sudden death, the offer 
was repeated to Wilmot, with any peerage, pension, and 
reversion he might be pleased to name ; but he was im- 
movable, and the great seal was given in commission to 
Sir Sidney Stafford Smythe, Sir Richard Aston, and the 
Honorable Henry Bathurst, afterwards Lord Apsleyu 

In the beginning of the following year, Lord North 
having become Prime Minister, before committing the 
clavisregni to the incompetent hands of Bathurst, made 
another vigorous effort upon Wilmot, but found him 
still preferring quiet to the first place in his profession, 
to great wealth, to hereditary honors for his family, and 
to the opportunity of making an historical name for 
himself. Bathurst was, in consequence, appointed ; and 
the sarcasm was elicited, that " what the three Lord 



1790.] JOHN EARDLY WILMOT. 183 

■Commissioners had been unable to do, was now to be 
done by the most incompetent of the three." 

To avoid all further solicitation, Wilmot resolved to 
resign his office, making infirm health the ground for 
his retirement. He had fretted himself into a tem- 
porary indisposition, during which he had got other 
judges to sit for him. Thus he addressed Lord Hard- 
wicke : — 

" My health necessitates my retreat from public bus- 
iness ; and all that I ask of his Majesty is, that he will 
be graciously pleased to accept my resignation ; for I 
have observed that it may be communicated to the King 
in the most humble manner from me that I do not wish 
or mean to be an incumbrance to his Majesty by any 
provision out of his civil list. I would much rather 
resign without any remuneration at all. I hate and 
detest pensions, and living upon the public like an 
alms-man." 

By the special intervention of the King himself, a 
retired allowance was settled upon him ; and in January, 
1776, his resignation was accepted. 

He survived above twenty years. That he might do 
something for the public money which he received, he 
long continued to hear appeals in the Privy Cou.ncil ; 
but the infirmities of age pressing upon him, he after- 
wards entirely devoted himself to the duties and enjoy- 
ments of private life. His principal occupation in retire- 
ment was superintending the education of his younger 
children. Thus he wrote to a boy of fifteen : — 

" Second my endeavors to cultivate your mind and 
to impregnate it with the principles of honor and truth 
which constitute a gentleman. These I received in the 
utmost purity from my own father, and will transmit to 
you and to your brothers unsullied. However fortune 
may exalt or depress you, the consciousness of having 
always acted upon these principles will give you the 
only perfect happiness that is to be found in this world. 
But, above all things, remember your duty to God, for 
without his blessing my love and affection for you will 
be as ineffectual to promote your happiness here as here- 
after ; and whether my heart be full of joy or of grief, 
it will always beat uniformly with unremitting wishes 



i84 REIGN OF GEORGE III. 

that all my children may be more distinguished for their 
goodness than their greatness." 
He lived to see the sixth age shift 

" Into the lean and slipper'd pantaloon," 

of which he gives the following description, almost as 
melancholy as that of our immortal dramatist ; — " I 
thought you would be glad to see, under my own hand, 
that I exist both in body and mind ; but I can neither 
go nor stand, nor eat, nor sleep." His family and his 
iriends had even to witness the sad spectacle of his 
passing through the 

. . . . " Last scene of all, 
That ends this strange eventful history, 
. . second childishness and mere oblivion." 

From this he was released on the Sth of February, 1792^ 
when he had reached his eighty-second year. His re- 
mains were interred in the parish church of Berkswell in 
Warwickshire, where a monument has been erected to 
his memory, which, according to his own directions, only 
gives the dates of his birth, of his death, and of the 
memorable events of his life. 

The impartial biographer must say, that although Sir 
Eardly Wilmot never shone as an orator, a statesman, 
or an author, he is to be placed in a very high rank in 
the order of Judges. Beyond the common qualities of 
patience and purity, he had an extraordinary store of 
juridical knowledge, he saw with celerity the questions 
of law upon which the decision of each depended, and 
he disposed of these not only with perfect accuracy but 
with wonderful copiousness of illustration. He was not 
fortunate in his reporters. Burrow and Wilson ; but his 
son has published, from his own MSS., several of his 
judgments, which are very honorable to his memory. 
I can only give a few short specimens of his manner. 

An action upon the case was brought for maliciously 
writing and publishing a libel upon the plaintiff in the 
following words, imputing to him that he was infected 
with a loathsome disease : — 

" Old Villiers, so strong of brimstone you smell, 
As if not long since you had got out of hell." 

After a verdict for the plaintiff, a motion was made in 
arrest of judgment by Sergeant Burland, who argued 



JOHN EARDLY WILMOT. 185 

that the words were not actionable ; that the itch is a 
distemper to which every family is liable ; that to have 
it is no crime ; nor does it bring any disgrace upon a 
man, for it may be innocently caught or taken by infec- 
tion ; — that the small pox and a putrid fever are worse 
disorders, yet no action would lie for saying that a per- 
son was ill of either of them. 

Wilmot, C. y. : " I think this is a libel for which an 
action well lies. If any one maliciously publishes any- 
thing in writing concerning another which renders him 
ridiculous or tends to hinder mankind from associating 
with him, he is injured, and may have a recompense in 
damages. I see no difference between this case and say- 
ing that a man has the leprosy or the plague, for which 
it is admitted that an action lies. A writ may issue to 
the sheriff to remove him without delay ad locum soli- 
tarium ad habitandum ibidem, prout maris est, ne per com- 
munem conversationem. suam hominibus dampnum vel 
periculum eveniet quovismodo. Nobody will eat, drink, or 
have any intercourse with a person who has the itch and 
stinks of brimstone. Therefore I think this libel action- 
able, and the judgment must be for the plaintiff.'" 

In an action on a policy of insurance on a malthouse 
burnt down by riotors, who, trying to reduce the price 
of provisions, for some time had possession of the town 
in which the insured building stood, — a question arose 
whether the insurance office was exempt from liability 
by an exception in the policy of all fires which might 
happen by "any invasion, foreign enemy, or any military 
or usurped pozver whatsoever." 

Wilmot, C. J. : " I am of opinion that the firing of 
the malt house by the mob is not afire by any usurped 
power within the meaning of the exception. Polices of 
insurance, like other deeds and instruments which evi- 
dence the agreements of men with one another, must be 
construed according to the true intent and meaning of 
the parties who make them. To find out this intention 
is often very difficult ; for when agreements are com- 
mitted to writing, all extrinsic evidence of intention is 
shut out ; and words being the only marks of that inten- 
tion, it happens that sometimes from the imperfection 
• a Wilson, 463 ; Villiers v. Mousley. 



1 86 REIGN OF GEORGE III. 

and poverty of language, and sometimes from the bar- 
barous and inaccurate application of it, much doubt 
arises with respect to the ideas which the parties de- 
note by the words they employ to express them. 
' Usurped power' are two equivocal words which per- 
plexed this question, and, under such a difficulty, judges 
have no other clue to lead them out of the maze but to 
consider the import of the accompanying words, to take 
into consideration the general scope and design as well 
as the particular sentence in which the words occur. 
Above all things the popular and ordinary use of the 
words must be attended to. Usage is the master key 
which unlocks the meaning of words : — 

" ' Quem penes arbitrium est et jus et norma loquendi.' " 

Having explained very copiously the nature of the 
fires by invasion, foreign ertemies, and military opera- 
tions, for which the insurers were not to be answerable, 
he thus proceeds :—''■ In my opinion there is a pro- 
digious difference between mobs and armies. The laws 
executed with spirit will always suppress a mob: the 
magistrates did with ease in this case. The undaunted 
courage of an individual, or the personal appearance of 
a man of credit and reputation, disperses or assuages 
these fevers of the people. Our own experience, as well 
as history, shows it according to that beautiful simile 
of Virgil : — 

" ' Ac, veluti magno in populo quum ssepe coorta est 
Seditio, ssevitque animis ignobile vulgus : 
Jamque faces et saxa volant ; furor arma ministrat : 
Turn, pietate gravem et raeritis si forte virum quem 
Conspexere, silent, arrectisque auribus adstant : 
lUe regit dictis animos, et pectora mulcet.' 

Suppose a mob fire a house before they disperse, all 
hands are instantly employed to extinguish it ; but 
neither the character nor courage of individuals can 
silence the thunder of cannon or prevent the bursting 
of bombs. To indemnify against the effect of rebellion 
and civil war may be too perilous an undertaking ; but 
there seems no reason why an indemnity should not be 
promised against fires raised by a mob. These, though 
they may be the ruin of individuals, are not likely to 



JOHN EARDIY VVILMOT. 187 

occasion a loss beyond the means of a wealthy insurance 
company." 

One Puisne was of a contrary opinion — but the two 
others agreeing with the Chief Justice, there was judg- 
ment for the plaintiff, and the rule here laid down has 
been acted upon ever since.' 

Sitting in the Exchequer Chamber, the question came 
before him whether a lady could maintain an action 
against a gentleman upon a deed by which he cove- 
nanted that he would not marry any other but her, 
under a penalty of ;^i,ooo. 

Wilniot, C. J. : " Upon the first view of the question 
the maxim cited at the bar, volenti non fit injuria, seems 
to favor such a covenant ; every man has a right dis- 
ponere de suo jure ; and as the law does not oblige any- 
body to marry, and leaves a free agency in that respect 
to every member of the community, it is not an agree- 
ment to omit what the law commands, but an agree- 
ment to omit what the law leaves to every man's choice 
to omit if he pleases. Besides obligations which are 
the subject of an action, every .member of civil society 
is under a variety of moral obligations which municipal 
laws do not enforce ; but which the law of nature, the 
law of God, calls upon him to perform. Gratitude, 
charity, and all parental and filial duties beyond mere 
maintenance; friendship, beneficence in all its various 
branches, and many more which might be named, are 
duties of perpetual, though imperfect, obligation ; and 
I cannot name a greater than matrimony, being one of 
the first commands given by God to mankind after the 
creation, repeated again after the deluge, and ever since 
echoed by the voice of nature to all mankind. For the 
precept of multiplication has been always expounded 
by the civilized part of the world to mean multiplication 
by the medium of matrimony ; and there cannot be a 
duty of greater importance to society, because it not 
only strengthens, preserves, and perpetuates it, but the 
peace, order, and decency of society depend upon pro- 
tecting and encouraging it. The point therefore to be 
considered is, whether a covenant to omit such a duty 
ought to be enforced in forocivili? The writers upon 
' Drinkwaier v. Royal Exchange, Wilm. Op. 2S2. 



1 88 REIGN OF GEORGE III. 

the law of nature consider contracts to omit such duties, 
as void ; nay, they consider an oath to perform them as. 
not obligatory.' Will the law of this country, the per- 
fection of human reason, enforce such a contract ? Is a 
covenant to omit moral duties, which, for the exercise 
of our virtues, are left to our free choice, the proper 
subject-matter of an action ? To entertain an action for 
the breach of such contracts, would be setting the laws 
of God and man at variance with one another. The 
celibacy of ecclesiastics, whether secular or religious, 
was a weed of the common law, erroneously tolerated 
by the common law, and totally extirpated at the 
Reformation. The case of the fellows of colleges de- 
pends upon the will of the founder : there is a succes- 
sion in colleges : it is only a temporary restraint on a 
few in seminaries of learning, which are not proper 
places for the reception of wives and children." After 
examining a vast number, he concludes by announcing 
the unanimous opinion of the Court that the deed was 
void." 

As the organ of the Common Law Judges, Wilmot 
declared their opinion in the House of Lords in the 
famous case of John Wilkes, on the question whether, 
the office of Attorney General being vacant, the So- 
licitor General may file an ex officio information for a 
libel ? 

" By our constitution," said he, " the King is intrusted 
with the prosecution of all crimes which disturb the 
peace and order of society. He sustains the person of 
the whole community for the resenting and punishing 
of all offenses which affect the community ; and for that 
reason all proceedings ad vindictani et poenam are called 
in the law ' the pleas or suits of the Crown.' In capital 
crimes these suits of the Crown must be founded upon 
the accusation of a grand jury; but in all inferior crimes 
an information by the King is equivalent to an accusa- 
tion of a grand jury. He employs an officer to file the 

' Grotius, lib. ii. cap. 13, s. 67. 

» Low V. Peers. Wilm. Op. 364. Tamen quare, for the covenant was sub- 
stantially a mere promise to marry the plaintiff or pay her a sum of money, 
and therefore not in restraint of marriage ; and the instrument being under 
seal, there was no necessity for a reciprocal obligation, or any other consid- 
eration, being expressed on the face of it 



yOHN EARDLY WILMOT. 189 

information in his name ; but the accusation is the act 
-of the King, the great constitutional guardian of the 
public peace. The arguing that the Attorney General 
■only, and no other officer, was intrusted by the consti- 
tution to sue for the King either civilly or criminally, is 
a fundamental mistake. The Attorney General s in- 
trusted by the King and not by the constitution ; it is 
the King who is intrusted by the constitution." He 
then gives an antiquarian history of the office of At- 
torney General, showing how by the will of the sover- 
eign it had gradually acquired its present dignity, and 
then proves that the Solicitor General has co-ordinate 
authority : " The Solicitor General is the Secundarius 
Attornatus ; and as the courts take notice judicially of 
the Attorney General when there is one, they take no- 
tice of the Solicitor General as standing in his place 
when there is none. He is a known and sworn officer 
of the Crown as much as the Attorney ; and, in the va- 
<:ancy of that office, does every act and executes every 
branch of it. When the Attorney dies or is removed, 
must the great criminal jurisdiction of this kingdom, in 
his department, be suspended till &.nother is appointed? 
Where is it to be found that in this interval the noblest 
branch of the King's regal office becomes inactive, and 
the subject's right to protection is in abeyance ? " 
He then cites many precedents in support of this opir ■ 
ion, — upon which the judgment against Wilkes wa 
affirmed.' 

I shall, further, only give a short extract from a judg 
ment which he had written, but which was not delivered 
in a case in which there was a summary application to 
the Court of King's Bench for an attachment against a 
bookseller who had published a pamphlet reflecting 
severely on Lord Mansfield and other Judges of the 
court for their conduct in libel prosecutions instituted 
by the Crown. The doctrine he lays down, that, by the 
law of the land, courts may punish in a summary manner 
for contempt, instead of waiting for an indictment to be 
tried by a jury, is highly important, as it applies equally 
to the privilege of the two Houses of Parliament to 
follow a similar course: — 

' Wilkes V. The King, Wilra. Op. 323. 



1 90 REIGN OF GEORGE III. 

" The power which the courts in Westminster Hall 
have of vindicating their own authority is coeval with 
their first foundation and institution ; it is a necessary 
incident to every court of justice, whether of record or 
not, to fine and imprison for a contempt acted in the 
face of the court ; and the issuing of attachments by the 
supreme courts of justice in Westminster Hall for con- 
tempts out of court stands on the same immemorial 
usage which supports the whole fabric of the common 
law; it is as much the /ex terrm, and within the ex- 
ception of Magna Charta, as the issuing of any other 
legal process whatsoever. I have examined very care- 
fully to see if I could find out any vestiges of its intro- 
duction, but can find none. It is as ancient as any other 
part of the common law; there is no priority or pos- 
teriority to be found about it ; it cannot, therefore, be 
said to invade the common law ; it acts in alliance and 
friendly conjunction with every other provision which 
the wisdom of our ancestors has established for the 
general good of society. Truth compels me to say that 
the mode of proceeding by attachment stands upon the 
very same foundation as trial by jury; it is a consti- 
tutional remedy in particular cases, and the judges in 
those cases are as much bound to give an activity to this 
part of the law as to any other.'" 

Sir Eardly Wilmot seems to have been venerated in 
his own time. He is spoken of with harshness only by 
Horace Walpole, who, prejudiced against him (as is 
supposed) by party malignity, after observing that " he 
was much attached to Legge," adds, " He loved hunting 
and wine, and not his profession." But, as Wilmot was 
certainly dull, though of a solid understanding, the noble 
and fashionable memoir-writer could never have been in 
his company, and could have known very little about 
him, for he describes him " as a man of great vivacity of 

' Rex V. Almond, Wilm. Op. 243. In consequence of the resignation of 
Sir Fletcher Norton, who, as Attorney General, had made the motion, it 
was dropped, after cause shown, while the Court was considering of its 
judgment ; and although there can be no doubt as to the power to proceed 
by attachment in such a case — if a prosecution for a libel on judges be 
necessary, the preferable course is to proceed by information or indictment, 
so as to avoid placing them in the invidious situation of deciding where 
they may be supposed to be parties. 



JOHN EARDLY WILMOT. 191 

parts." He rarely indulged in wine, and " case-hunting" 
was the only sport in which he took delight.' 

The following character of him is drawn by his son, 
which, though colored by pious partiality, presents a' 
striking likeness : — 

" His person was of the middle size ; his countenance 
of a commanding and dignified aspect ; his eye par- 
ticularly lively and animated, tempered with great sweet- 
ness and benignity. His knowledge was extentive and 
profound, and, perhaps, nothing but his natural modesty 
prevented him from equalling the greatest of his pre- 
decessors. It was this invincible modesty which con- 
tinually acted as a fetter upon his abilities and learning, 
and prevented their full exertion in the service of the 
public. Whenever any occasion arose that made it 
necessary for him to come forward (as was sometimes 
the case in the House of Lords, in the Court of Chan- 
cery, and in the Common Pleas), it was always with 
reluctance ; to perform a duty, not to court applause, 
which had no charms for his pure and enlightened mind. 
But although he was never fond of the practice of the 
law as a profession, he often declared his partiality for 
the study of it as a science : as an instance of this, after 
he had resigned his office he always bought and read the 
latest Reports, and sometimes borrowed MS. notes from 
young barristers. He was not only accomplished in the 
laws of his own country, but was well versed in the 
civil law, which he studied when at Trinity Hall, Cam- 
bridge, and frequently affirmed that he had derived great 
advantage from it in the course of his profession. He 
considered an acquaintance with the principles of the 
civil law as the best introduction to the knowledge of 
law in general, as well as a leading feature in the laws 
of most nations of Europe. His knowledge, however, 
was by no means confined to his profession. He was a 
general scholar, but particularly conversant with those 
branches which had a near connection with his legal pur- 
suits, .such as history and antiquities. He was one of 
the original fellows of the Society of Antiquaries, when 
first incorporated in 1750, and frequently attended their 
meetings, both before and after his retirement : most of 
' Men. Geo. II., ii. 107, 



192 REIGN OF GEORGE III. 

his leisure hours were spent in the above researches. 
But of all the parts of Sir Eardly's character, none was 
more conspicuous than the manner in which he con- 
ducted himself on the bench in that most delicate and 
important office of hearing causes, either of a criminal 
or civil nature. He was not only practically skilled in 
his profession, but his penetration was quick and not 
to be eluded ; his attention constant and unabated ; his 
elocution clear and harmonious ; but, above all, his tem- 
per, moderation, patience, and impartiality were so distin- 
guished, that the parties, solicitors, counsel, and audience 
went away informed and satisfied, if not contented,' etiam 
contra quos statuit, sequos placatosque dimisit.' This 
was the case in questions of private property ; but when 
any points of a public nature arose, there his superior 
abilities and public virtue were eminently characterized: 
equally free from courting ministerial favors or popular 
applause, he held the scale perfectly even between the 
Crown and the people, and thus became equally a favor- 
ite with both. This was conspicuous on many occasions, 
but particularly in the important cause, related before, 
between Mr. Wilkes and Lord Halifax, in 1769. In pri- 
vate life he likewise excelled in all those qualities that 
render a man respected and beloved. May the remem- 
brance and contemplation of his virtues inspire his de- 
scendants with a desire to imitate them ! This he would 
have thought the most grateful reward, this the noblest 
monument ! Such unaffected piety, such unblemished 
integrity, such cheerfulness of manners and sprightliness 
of wit, such disinterestedness of conduct and perfect 
freedom from party spirit, could not and did not fail of 
making him beloved, as well as admired, by all who 
knew him. Genuine and uniform humility was one of 
his most characteristic virtues. With superior talents 
from nature, improved by unremitting industry, and ex- 
tensive learning, both in and out of his profession, he 
possessed such native humbleness of mind and simplicity 
of manners that no rank nor station ever made him 
think highly of himself or meanly of others. In short, 
when we contemplate his various excellencies, we find 
ourselves at a loss whether most to admire his deep and 
extensive learning and penetrat.on as a lawyer; his in- 



JOHN EARDLY WILMOT. 193 

dustry, probity, firmness, wisdom, and patience as a 
judge; his taste and elegant accomplishments as a 
scholar ; his urbanity and refined sentiments as a gentle- 
man , or his piety and humility as a Christian." 

We must place him far above those who have been 
tempted by inordinate ambition, to mean or wicked ac- 
tions ; yet we cannot consider his public character as by 
any means approaching to perfection, for he was much 
more solicitous for his own ease than for the public 
good. By becoming a representative of the people, he 
might have materially assisted the House of Commons 
in its legislative deliberations. By accepting the great 
seal, he would have rescued the country from the in- 
competence of Bathurst, who, hardly qualified to be a 
chairman of Quarter Sessions, presided seven years on 
the woolsack. Filling the marble chair, what benefits 
might he not have conferred upon the community by 
his decisions, and by the amendment of our laws ! He 
was deterred, not by any misgivings as to his own qual- 
ifications, or by any dislike to the political principles of 
those with whom he was to be associated in the Cabinet, 
but by morbid hatred of conspicuous position, and by 
selfish love of tranquillity. He did not shun political 
strife that he might make discoveries in science or con- 
tribute to the literary fame of his country. The 
tendency of the tastes by which he was animated is to 
make life not only inglorious, but useless.' 

I now come to a man who, animated by a noble am- 
bition for power and fame, willingly acted a conspicuous 
part before the public for above half a century ; who was 
a great benefactor, as well as ornament, to his own 
times; and whose services to a distant posterity will be 
rewarded by his name being held in honored remem- 
brance. 

' The facts of this little memoir are almost all taken from a Life of Sir 
John Eardly Wilmot, published by his son. A few are added from the 
traditions of Westminster Hall. 
HI — 13. 



CHAPTER XXX. 

UFE OF LORD MANSFIELD FROM HIS BIRTH TILL HE 
WAS CALLED TO THE BAR. 

AN indifferent author, who wished to write the life 
of Lord Mansfield, having applied to him to be 
furnished with materials, "so that the brilliancy 
of such a splendid luminary of the law might never 
fade," received the following answer: — "My success in 
life is not very remarkable : my father was a man of rank 
and fashion ; early in life I was introduced into the best 
company, and my circumstances enabled me to support 
the character of a man of fortune. To these advantages 
I chiefly owe my success ; and therefore my life cannot 
be very interesting ; but, if you wish to employ your 
abilities in writing the life of a truly great and wonder- 
ful man in our profession, take the life of Lord Hard- 
wicke for your subject ; he was indeed a wonderful 
character; he became Chief Justice of England, and 
Chancellor, from his own abilities and virtues, for he 
was the son of a peasant." 

Unless this may be excused as a mode of getting rid 
of an impertinent application from a coxcomb, it must 
be considered an ebullition of aristocratic insolence. 
The ^'peasant " was an eminent attorney in England ; 
and, by birth, Ms son had an infinitely better chance of 
succeeding at the English bar, and reaching the highest 
dignities in Westminster Hall, than the son of a poor 
Scotch peer, of descent however illustrious. When the 
babe, afterwards Earl of Mansfield and Chief Justice of 
England, first saw the light at Scone, the chances were 
many milliards to one that he would never fill that 
office ; and the probability was, that, if he was not cut 
off" by some of the diseases of childhood, he would ob- 
scurely waste his days, like a true younger brother — with 
a contempt of trade and of books, — angling for salmon 



LORD MANSFIELD. 195 

in the river Tay, and coursing the deer over the braes of 
Athol ; or that he would languish as a subaltern in the 
army, without hope of promotion, in the service of 
King George ; or (which was still more probable) that 
he would wander over Europe in exile and in indigence, 
as an adherent of King James, enjoying no prospect of 
celebrity except that which might accrue to him from 
being beheaded on Tower Hill. 

His circumstances did not enable him " to support the 
character of a man of fortune," and he did not owe his 
success to the advantages which he then enumerated. 
His life, therefore, is very interesting, — and it must be 
curious to trace the steps by which, after riding on a 
wretched pony from Perth to London, "he drank cham- 
pagne with the wits ;" he became the most distinguished 
advocate in England ; he prosecuted Scotch peers, his 
cousins, for treason against King George ; he was the 
rival of the elder Pitt, the greatest parliamentary orator 
England has ever produced ; he was raised to be the 
highest Criminal Judge of the realm; he repeatedly re- 
fused the still more splendid office of Lord Chancellor; 
he, without political office, directed the measures of 
successive Cabinets ; and (what was far truer glory) he 
framed the commercial code of his country. 

There are other considerations which particularly ex- 
cite me as I enter upon the life of LORD Mansfield. 
He was the first Scotchman who ever gained distinction 
in the profession of the law in England ; and, though 
his education was English, the characteristics of his race 
may have contributed to his success.' Being, like him, 
an English lawyer, I am proud of him when I reflect 
that he affords a rare example among us of a genuine 
taste for elegant literature, combined with a profound 
knowledge of jurisprudence. But, most of all, I look 

' Different trades and professions seem to suit the inhabitants of different 
countries. In London, all the milkmen are Welsh ; all the sugar-bakers 
are German, and a great many of the tailors. The vast majority of the 
bakers are Scotch, but there is not a Scotch butcher to be found. While no 
tolerable theatrical performer ever came from Scotland, we have had con- 
siderable success in medicine and in law. To the literature of the country I 
trust it will be allowed that we have brought at least our fair contribu- 
tion, when it is considered that there are less than 3,000,000 of inhab- 
itants in Scotland, while there are 8,ooo,ooci ia Ireland, and 14,000,000 in 
England. 



196 LORD MANSFIELD. 

upon him with interest as a connecting link between the 
reign of Queen Anne and our own times. Having been 
the familiar friend of Pope, he was the familiar friend 
of my familiar friends.' Occupying the stage of polit- 
ical life almost for a century, he brings together systems 
as well as men that seem many generations asunder. 
After the expulsion of the Stuarts he saw the present 
dynasty placed upon the throne of Britain ; and he lived 
to hear the news of the murder of Louis XVI., and to 
foresee and foretell all the evils which Europe has since 
suffered, and is suffering, from a violation of the princi- 
ples of order and of true liberty. 

In following the career of such a man, while we meet 
with striking vicissitudes affecting him individually, we 
must catch interesting glimpses of history and of man- 
ners. But I have too much raised expectation, and 
I must now expose myself to the peril of disappoint- 
ing it. 

Lord Mansfield was entitled to the consideration 
which fairly belongs to distinguished ancestry. Setting 
aside the fabulous origin of his family from a great MO- 
RAVIAN chief, supposed in a very remote age to have 
conquered a province of Scotland now called Moray- 
shire, we know, from authentic records, that Friskinus de 
Moravia was a powerful noble in the north of Scotland 
in the beginning of the twelfth century; and that Gu- 
lielmus de Moravia, his lineal descendant, by a charter 
of King Alexander III., dated 1284, was confirmed in 
the possession of the estates of Tullebardine, in the 
county of Perth, which he had obtained by marriage 
with the heiress of Malise, Seneschal of Strathearn. 
From him sprang a long line of Barons of Tullebardine, 
represented by the present Duke of Athol, chieftain of 
the Murrays. 

A younger son of Sir William Murray, the eighth 
Baron of Tullebardine, was married to the Lady Janet 
Graham, daughter of the Earl of Montrose, and had 
several sons, who, though highly connected, were very 

' I may particularly instance the late Mr. Justice Allan Park and Lord 
Mansfield's kinsman, the present Lord Murray, a judge of the Court of 
Session. My greatest hoast in this line is, that I have conversed with Sir 
Isaac Herd, the celebrated Herald, and he had conversed with a person 
who was present at the execution of Charles I. 



LORD MANSFIELD. 197 

poorlyprovidea for, and seemed to have no resource for 
a subsistence but to join in an occasional raid on the 
lov/lands, or to become tacksmen to the chief of the clan 
of a patch of land in a remote highland glen. This was 
probably the fate of all of them except one, for no men- 
tion is afterwards made of the others ; and their de- 
scendants may be shoemakers at Perth, or maybe sweep- 
ing the crossings of the streets in London, unconscious 
of any claim to noble ancestry. But David, the second 
son, became the founder of the Stormont branch of the 
family, and is the ancestor of the Earls of Mansfield. 

Being remarkably well formed and athletic, he was en- 
listed, when very young, as a private in a small body of 
halberdiers, all of gentle blood, constituting the body- 
guard of James VI., who nominally had filled the Scot- 
tish throne from his infancy, while his mother, Mary, the 
rightful sovereign, was a captive in a foreign land, and 
successive factions governed in his name. The identical 
passion for handsome favorites, which afterwards raised 
the Earl of Somerset and the Duke of Buckingham to 
such unfortunate distinction in England, showed itself 
in the Scottish monarch in early youth. Caught by the 
good looks, pleasing manners, and skill in all sorts of 
games which he discovered in David Murray, he made 
him his companion, knighted him, and promoted him to 
be Master of the Horse, Comptroller of the Household, 
and Captain of the Body-guard. 

It so happened that the favorite was in attendance on 
his royal patron in the castle of the Earl of Gowrie, at 
Perth, when that conspirator (for such, after long con- 
troversy, I fear he is now proved to have been) at- 
tempted to make the King a prisoner, with the view of 
getting all the power of the state into his own hands.' 
Sir David Murray displayed great presence of mind 
upon the occasion, and gave important assistance in res- 
cuing the King and securing the traitors. He soon after- 

' I wish I could have defended him from this charge, as he was the heir 
and representative of the Lords Hallyburton, from wliom I am- descended ; 
but, in spite of the many volumes which have been written on the Gowrie 
Conspiracy to prove that James got up a sham plot to wreak his vengeance 
on a family he had devoted to destruction, I think there can be no longer a 
doubt that tlie plot was real, and that he had very nearly been the victim 
of it. 



rgS LORD MANSFIELD. [1600, 

wards gallantly quelled an insurrection of the inhab- 
itants of Perth and the surrounding country, who idol- 
ized the young Earl of Gowrie, and had risen to avenge 
his death. For these services a considerable portion of 
the forfeited estates of that nobleman was bestowed upon 
him. The site of the ancient Abbey of Scone, — where 
the kings of Scoi:land had been crowned from the re- 
motest antiquity, and where stood, till it was removed 
to Westminster by Edward I., the famous stone on 
which they were anointed, — had been granted to the 
Earl, after the sacred edifice itself had been burnt to the 
ground by the reformers ; — and here he was erecting a 
new castle, or PALACE (as it was called from royal recol- 
lections), at the time of his attainder. This became part 
of the possessions of the new favorite, who completed 
the structure, and was designated Lord Scone, the prop- 
erty having been erected into a temporal barony. He 
continued in high favor at court till James's accession 
to the throne of England ; and, although he was then 
cast off for other minions, he was afterwards, by letters 
patent bearing date i6th of August, 1621, created 
Viscount Stormont.' This title, long borne by his 
descendants in the lineal male Ime, was absorbed by 
the earldom, which a cadet won by very different arts 
and achievements. 

For several generations following, the family were 
distinguished by extravagance rather than by talent or 
enterprise, and a large portion of the possessions which 
they had received from the bounty of King James VI. 
had been alienated. In the time of the fifth Viscount 
little remained to them beyond the Castle of Scone, 
which, in a dilapidated condition, frowned over the Tay 
in the midst of scenery which for the combination of 
richness and picturesque beauty is unsurpassed. He 
had married the only daughter of David Scot, of Scot- 
starvet, the heir male of the Scots of Buccleugh ; but had 
received a very slender portion with her, as their vast 
possessions had gone with the daughter of the last Earl, 
married to the Duke of Monmouth. To add to the 

' There may still be seen in th? adjoining church a fine marble monument 
over his tomb, representing him, as large as life, in a kneeling posture, and 
in complete armor, 



S70S-] LORD MANSFIELD. 



199 



difficulties of the poverty-stricken Viscount, his wife, 
although of small fortune, was of wonderful fecundity, 
and she brought him no fewer than fourteen children. 
For these high-born imps oatmeal porridge was the 
principal food which he could provide, except during the 
season for catching salmon, of which a fishery near his 
house, belonging to his estate, brought them a plentiful 
supply. 

William, the eleventh child and fourth son of this 
blood, destined to be Chief Justice of England, was born 
in the ruinous castle of Scone on the 2nd day of March, 
1705.' I do not read that his mother had any prophetic 
-dream while she carried him in her boson, or that any 
witch or wizard with second sight foretold his coming 
greatness. He muled and puked like other children, and 
when it was time that he should be taught his letters he 
was sent to a school at Perth, only a mile and a half 
from his father's residence, where he ran about with the 
sons of the surrounding gentry and of the citizens and 
tradesmen of the town, all barefooted, and speaking a 
dialect which was not Gaelic, for Perth was always with- 
in the boundary which separated the Lowlands of Scot- 
land from the Highlands, but which was 2, patois hardly 
to be called Anglo-Saxon.* 

Holliday, — who, although he had every advantage in 
writing the life of Lord Mansfield, being himself a law- 
yer in extensive business, having often practiced before 
him, and having been honored with his friendship, has 
left us the worst specimen of biography to be found in 
any language, — says, " About the tender age of three 
3'ears he was removed to, and educated in, London ; 
and, consequently, he had not, when an infant, imbibed 
any peculiarity in dialect." This statement has been 
followed by all the subsequent biographers of Lord 
Mansfield, and has been assumed for truth by all who 
have since referred to his early career. According to 
lioswell, " Dr. Johnson would not allow Scotland to 

' The date is usually given 1704, but this is according to the old style. 

- A very circumstantial account of his infancy was given by his nurse, 
who died in 1790, in the parish of Monimail, in Fife, at the age of 105. 
She usually concluded her narrative by observing that " Mister Willie was a 
very fine laddie." See Sir John Sinclair's Statistical Account of Scotland, 
■»'. 404. 



soo LORD MANSFIELD. Lhio— 

derive any credit from Lord Mansfield, as he had 
been reared in England ; observing, ' Much may be 
made of a Scotchman if he be caught young.' " But 
I have ascertained from his near kinsmen, who speak 
from family papers, that the story of his being thus 
taught and tamed is pure invention. He remained 
at the grammar school at Perth till he was in his 
fourteenth year, when he went to Westminster. After- 
wards, by constant pains with his pronunciation, and by 
never returning to visit his native country, he did almost 
entirely get rid of his Scotch accent ; but there were 
some shibboleth words which he could never pronounce 
properly to his dying day, and which showed that his 
organs of speech had contracted some rigidity, or his 
organs of hearing some dullness, before his expatriation. 
For example, he converted regiment into reg'ment ; at 
dinner he asked not for bread but for brid ; and in calling 
over the bar he did not say " Mr. Solicitor," but " Mr. 
Soleester, will you move any thing." 

I need hardly notice the equally unfounded story that 
he was at Lichfield School along with Lord Chancellor 
Northington, Chief Justice Willes, Chief Justice Wilmot, 
Chief Baron Parker, Sir Thomas Clarke, Master of the 
Rolls, and a herd of puisne judges, who are supposed to 
have there played together at taw, and afterwards simul- 
taneously and exclusively to have presided in West- 
minster Hall. Instead of such amusing wonders, I am. 
obliged to state that he spent his boyhood among com- 
panions whom he never afterwards met, or much wished, 
to meet again. However, Latin was infinitely better 
taught then in the grammar schools of Scotland than at 
the present day ; and young Willie Murray could not 
only translate Sallust and Horace with ease, but had 
learned a great part of them by heart, — could converse 
fluently in Latin, — could write Latin prose correctly and 
idiomatically, — and even could have contributed Latin 
verses to the Delici^ Poetarum ScoTORUM, a col- 
lection of modern Latin poems which had been pub- 
lished not long before in Edinburgh, and which must be 
allowed to be much superior to the Mus^ Etonenses- 

' I have often been at a loss to understand how Latin versification, which. 
had flourished in Scotland so much in the i6th and 17th centuries, dis^p- 



17I3-] LORD MANSFIELD. 201 

or the Arundines Cami.' In Greek he made little 
progress beyond learning the characters and the de 
clensions.' 

But there was another foreign language which he wat. 
taught grammatically, and which he was supposed to 
speak and write with wonderful facility and accuracy. 
Pure English was laboriously attended to at Perth 
School, both in reading and composition ; its rules and 
its irregularities were fully explained, and the writing 
of an English essay was an exercise required from the 
boys at the peril of the ferula. Lord Mansfield, in his 
old age, was often heard to declare that when at West 
minster and at Oxford, and even when contending with 
rivals in public life, he had enjoyed an essential ad- 
vantage from this discipline, as he discovered that in 
England, while they wasted many years on Latin and 
Greek prosody, they almost entirely neglected the scien- 
tific cultivation of their mother tongue; and he found 
eminent lawyers and statesmen who, when forced to 
commit their thoughts to writing, showed that they had 
no notion of the division of English prose into sentences, 
and who, though decently well acquainted with orthog- 
raphy, set at utter defiance the rules of grammar. 

Willie Murray, according to the tradition in his family, 
while going through the school at Perth, displayed the 
sharpness of intellect, the power of application, and the 
regularity of conduct which distinguished him in his 
after-career. He was almost always Dux., or head of his 
class ; and, albeit that, according to the custom of the 
age, flagellation with the taws was administered even for 
small faults, his hand remained without a blister." 

peared so completely in the iSth. When I was a boy, although the habit 
of composing Latin prose was well kept up, I do not believe that in all 
Scotland there was either a schoolboy or a schoolmaster who, to save his 
life, could have written in Latin an alcaic ode, or twenty hexameters and 
pentameters alternately. The practice of speaking Latin still prevailed. 
There has since been an attempt at a revival, and Latin versification is 
practiced at the High School of Edinburgh and other classical seminaries, — 
but we may judge from the " Musse Edinenses," not as yet with great 
success. 

' I am sorry to say that Greek has at no time been cultivated in Scotland 
as this noble dialect deseives, although it has been much more attended to 
of late years, since professors bred at Oxford and Cambridge have been 
elected to the Greek chairs in the Scotch Universities. 

' Instead of the birch applied to another part of the person, in English 



202 LORD MANSFIELD. [1715— 

Till the year 1713, Lord and Lady Stormont continu- 
ing to reside in the palace at Scone, Willie lived at home 
with them, and he daily walked or rode on a pony to 
school, — thus combining, in the Scottish fashion, the ad- 
vantages of public education and of domestic discipline. 
Rut, for the sake of economy, the family was then 
moved to a small house at Camlongan, in the county of 
Dumfries ; and Willie and a younger brother, Charles, 
were boarded with Mr. Martine, the master of the gram- 
mar-school at Perth, who received for them a yearly 
payment in money and a certain allowance of oatmeal. 
The following items respecting them, which I have ex- 
tracted from the accounts of Mr. Barclay, a writer to the 
signet. Lord Stormont's Edinburgh agent, may amuse 
the reader : — 

£. s. d. 

1715. May 25. Item. — Sent to Scone per Lady's letter for 

Mr. William, C^SARis Commentarius - 'i 04 00 

1717. Aug. 8. Item. — At order bought of Mr. Freebairn 
for Mr. William, my Lord's son TiTUS 
Livius, in a great folio and large print for 
10s. Sterlin, sent to Perth by Walker the 
carrier ---... 60000 

— June 24. Item. — Paid to Mr. John Martine for Mr. 

William and Charles, their quarter pay- 
ment and for their board from the 17th 
June to 17th Sept. p' receipt - 60 00 00 

■^ July 13. It- — Payd to Charles Melvill, merch'. in 

Perth, a year's chamber meal for Mr. Wil- 
liajn and Mr. Charles as p' discharge to 
Whyts. 1717 - - - - 18 00 00 

— Aug. 16. It. — For cutting Mr. William and Charles 

hair o 12 00 

— Sept. 24, It. — To a Perth carrier for bringing over 

books from Ed' to Mr. William - - 00 06 00 
It. — Given out by the Compter for Mr. Wil- 
liam and Charles, as p' particular ac- 

compt 35 19 00 

//. — For a pair of boots for Mr. William 03 12 00 

— Nov. 14. Letters from Mr. William Murray, my 

Lord's son, with one inclosed to his sister 

Amelie ----- -00 02 00 

— Nov. ig. A letter from Mr. William with one in- 

closed to my Lady from St. Andrews - 00 02 00 

fashion, the Scots have adopted the punishment which made good scholars 
at Rome, — " Et nos ergo ferulae subduximus." 

' On examining this account I was much surprised at the seeming enor- 
mously high price of books in Scotland in the beginning of the last century, 
till I discovered that it is kept in Scottish currency — ^by which the pound, 
which was once the same all over Europe, being a pound of silver accord- 



nyiyj ^ORD MANSFIELD. 



203 



When Mr. Solicitor General Murray was afterwards 
rising into greatness, envious libels upon him sarcasti- 
cally referred to his early education, and the following 
graphic account was given of his schooling at Perth: — 

" Learning was very cheap in his country, as it might 
be had for a groat or a quarter, so that a lad went two 
or three miles of a morning to fetch it ; and it is very 
common to see there a boy of quality lug along his books 
to school, and a scrip of oatrrleal for his dinner, with a 
pair of brogues on his feet, posteriors exposed, and no- 
thing on his legs.'" 

Willie Murray approaching his fourteenth year, the 
time was at hand when, according to the system of edu- 
cation then and still subsisting in Scotland, he was sup- 
posed to have learned all that could be acquired at 
school, and it was in contemplation to send him to the 
neighboring University of St. Andrew's, where some 
remains of the passion for classical learning, kindled by 
George Buchanan when principal of St. Leonard's Col- 
lege, still lingered.'' 

Much perplexity existed in the family with respect to 
the choice of a profession for him. His father, although 
he had not joined the Earl of Mar or fought at Killie- 
crankie, was a decided Jacobite, and his brother James 
had followed the Stuarts into exile. There was, there- 
fore, little hope of promotion for any of the family from 
Court favor as long as the House of Hanover should 
keep possession of the throne. The Church offered no 
rescource ;'for the Nonjuring Episcopalians were not 
even tolerated, and few of the Presbyterian livings 
reached ;^iOO a year. The law was more hopeful; but, 
from its being the only civil profession in Scotland 

ing to the standard of Troyes, and was reduced in England to one-third of 
its original value, — in France to loa'., — was reduced in Scotland to is. id. 
of English currency ; — so that the price of C^sak's Commentaries, in- 
stead of being £1 \s., was only ■2.S. Of course all the other items are to be 
lowered in proportion. 

' Pamphlet entitled " Broadbottom." 

' Having heard a surmise that he had actually studied at St. Andrew's 
during the session 1717-18, I caused a search to be made through the kind- 
ness of my friend Sir David Brewster, Principal of the United College of 
St. Saviour's and St. Leonard's there — but the only matriculation of any of 
the family to be found is that of his brother Charles : " Cha : Murray fil : 
Vicecomitis de Stormont matriculated in Col. D. Leonardi. 1721." 



204 LORD MANSFIELD. [1718.. 

deemed fit for a gentleman, the numbers who followed 
it bore a fearful proportion to its emoluments. 

Upon. this subject Lord Stormont consulted James,, 
his second son, with whom, although not avowedly be- 
longing to the court of the Pretender, and created by 
the banished sovereign Earl OF DUNBAR, he still in- 
directly kept up an affectionate intercourse. 

This gentleman, who is said to have possessed the 
same shining abilities and silver-toned voice as William, 
when he had reached his eightieth year died an outlaw,' 
but during the early portion of his exile he no doubt 
expected, like another Clarendon, to see the legitimate 
heir restored to the throne and to rule Britain in his 
name. He had been bred to the bar in Scotland, and 
probably would have gained great forensic eminence had 
it not been that in the year 1710, before he had made 
much progress in his profession, he was returned to the 
House of Commons as representative for the Elgin dis- 
trict of burghs. He thereupon went up to London, 
and enlisted himself under the banner of Bolingbroke,. 
professedly belonging to the high-Tory and secretly 
abetting the Jacobite cause. He was thus naturally in- 
troduced to Bishop Atterbury, then Dean of Westmin- 
ster, and by political sympathy he gained the confidence 
of this daring prelate, who, when others quailed, himself 
offered in his lawn sleeves to proclaim James HI. When, 
at the death of Queen Anne, Bolingbroke's plot to bring 
in her brother failed, and George L quietly succeeded 
as if by hereditary right, James Murray followed the ex- 
ample of his leader, and, much more steady and trust- 
worthy, he always remained true to the Stuarts, not- 
withstanding their imbecility and their bigotry. He 
hoped to draw over his brother William, of whose 
sprightly parts he had heard much, to the same side. 
For this purpose he thought there could be no means 
so effectual as having him educated under the auspices 
of Atterbury. He therefore wrote back to his father a 
flaniing account of Westminster School, — mentioned the 
distinguished men he had become acquainted with wha 
had been reared there,— stated that, with proper man- 

' He died at ATi£;noo in 1770, and was fifteen years older than Lord 
Mansfield. 



171S.J LORD MANSFIELD. 



205 



agement, the expense of starting a boy there was not 
■considerable,— hinted at the interest he still had which 
might be made available to have Wille put upon the 
foundation as a King's scholar, — pointed out the cer- 
tainty of his obtaining a scholarship at Christ Church, — 
and showed how, in that case, every thing would be 
open to him in the church and in the state. 

The plan seemed so feasible, that at a family council 
it was unanimously approved of, and Willie was de- 
lighted with the prospect of speedily seeing all the 
wonders of London, instead of pining in the gloomy 
■cloisters of St. Andrew's, or being overpowered by black 
smoke and bad smells in Auld Reekie. 

He was to perform the whole journey on horseback, 
— riding the same horse. ~ Post-horses were not estab- 
lished till long after. There were then two or three 
-times a month traders from Leith to the river Thames, 
in which passengers might be accommodated ; but, if 
the wind was foul, they were sometimes six weeks on 
the way. A coach, advertised to run once a week from 
the Black Bull in the Canongate to the Bull and Mouth 
in St. Martin's le Grand, did not promise to arrive before 
the tenth day, and, besides being very incommodious, 
was very expensive. Mr. William was therefore to be 
<:arried on the back of a " Galloway," or pony which my 
Lord had bred, and which was to be sold on his arrival 
in the great city to help to pay the expenses of his out- 
fit there. 

On the 15th of March, 1718, he joyfully bade adieu to 
Mr. Martine and his school at Perth, and expected easily 
to reach Edinburgh the same day; but near the Queen's 
Ferry the horse fell lame, and it was necessary to leave 
him behind, the rider traveling the rest of the stage on 
foot. 

Having completed his equipment at a shop in the 
Luckinbooths, and his horse being again sound and 
serviceable, on Saturday, March 22d, he left Edinburgh 
for Camlongan, where he was to take leave of hia 
parents.' 

We have no information respecting the parting scene ; 

but we need 11 ot doubt that it was very tender on both 

' I find the following entries in Mr. Barclay's accounts connected with 



2o6 LORD MANSFIELD [171S. 

sides. An assertion may be hazarded that much good 
advice was given, and that warm promises of good con- 
duct were sincerely reiterated. An old ash-tree is still 
shown in Dumfriesshire under which, according to tradi- 
tion. Lord Mansfield received his father's blessing. It 
is a melancholy fact that he never saw either parent 
more. 

But whatever forebodings he may have had, they 
were soon dispelled when he found himself on the high 
road leading from Dumfries to Carlisle, — when he felt 
he was his own master, — when he told over the money 
with which he was intrusted to pay his expenses on the 
way, — when he thought of the various counties through 
which he was to pass, some of which were greater than 
Perthshire, which he had considered sufficient for an em- 
pire, — when he figured to himself the King he was soon 
to see with a golden crown on his head, — and when his 
bosom swelled with the proud certainty that he could 
never more be in danger of the taws. As we imagine 
him to ourselves trotting along and communing with 
himself, it is impossible not to be struck with the sim- 
ilarity of his situation to that of Gil Bias, when this un- 
lucky youth, having received the blessing of his parents, 
started on his uncle's mule from Oviedo on the road to 
Pegnaflor, with the intention of studying at the univer- 
sity of Salamanca. But the Scotsman had much less 
vanity and much more prudence. Therefore he was not 
mystified by a parasite, he was not cheated of his horse, 
he did not become a companion of highwaymen, and he 
safely reached his destination. The only particulars that 
we know of his journey are, that he slept the first night 
at Gretna Green, which had not yet acquired its hyme- 

these occurrences , but they add very little to the information we have froDa 

other sources : — 

" 1718. March 22. Mr. Wm. my Lord's son, taking jurney here 
this day for Camlongan — payd by me at the stable 
to a ferrier for the horse brought in lame here by 

Cameron on Sunday the l6th under coure till this 

day 4J. Ster. £i q& 00 

It. Att Corsons Lord Inverurie's governour Denbres' 
2 sons and governour conveying Mr. IVm. to his 
horse payed be Sandie Orane for morning drink -$380 

NoTA Mr. Wm. payed or. Ster. for keeping the horses att Rob' Corsons 

himself." 



17 1 8.] LORD MANSFIELD. 



207 



neal reputation, English runaway marriages then and long 
after being celebrated in the Fleet and Mayfair, — and 
that he was nnuch struck, the following day, with the 
fortifications of Carlisle, which appeared formidable to 
an unmilitary eye, although a few years later the place, 
after a short siege, surrendered, first to Prince Charles 
and then to the Duke of Cumberland. He followed the 
same route which was taken by the rebels as far as 
Derby, and if they had boldly dashed on, as he still did, 
they might, like him, have carried all before them in 
London. 

His long, but not wearisome, journey was concluded 
on the 8th of May, 1718. He had been consigned to the 
care of one John Wemyss, an emigrant from Perth, who 
had settled in London as an apothecary, and had thriven 
there very much by his skill, attentiveness, and civility. 
This canny Scot had been born on the Stormont estate, 
and was most eager to have it in his power to be of ser- 
vice to any of that family. He did all that was neces- 
sary to launch Mr. William in London, by assisting him 
to sell his horse, by advancing him money and making 
payments for him, by buying him a sv/ord, two wigs, 
and proper clothes, by entering him with the head 
master of Westminster School, and by settling him at a 
dame's in Dean's Yard. The following are a few items 
in the account which he afterwards rendered in to Lady 
Stormont, and they give a more lively notion of the cus- 
toms and manners of the time than could be gathered 
from whole pages of dull narrative, explanation, and dis- 
sertation ; — 

Lib. sh. d. 
1718. May 8. ffor y» carriadge Mr. William's Box and bringing 

it home .09. 

ffor his horse before he was sold - - - - . 08 7 

To Dr. Friend for enterance - - - - I OI . 

ffor a Trunk to him ffor his cloaths - - - . 13 . 

To his Landlady where he Boards, for Entry 
money - - - - - - • -5 05° 

— 25. ffor a sword to him - - - - - -loio 

ffor a belt - - * • 

ffor pocket money to him - - - - - • 3 • 

June 5. ffor pocket money - - - - - - . I . 

ffor two wigs as per receit - - • - 4 4 • 

— 18. ffor a double letter and pocket money to him • . 2 . 
Aug 16 To Mr. William who went to the Countrey- . 6. 



2o8 LORD MANSFIELD. [1719. 

Lib. sh. d 

1718. Dee. 17. Three guineas to the masters and a double 

letter 3 4 

1 7 19. Jan. 4. ffor pocket money 5 shil: and the ij to Dr. Friend 

3 guineas ■ - - 38. 

— 21. To Mr. W". to treat with before the Elections 

began - - - - - I I O 

Pay'd the taylor as p' bill - - - - 9 g . 

Pay'd Mrs. Toilet for a years board and for things 

laid out for him as p' bill - - 20 10 4 

William Murray was a good boy, and stuck very 
steadily to his books. His strange dialect at first ex- 
cited a little mirth among his companions, and they 
tried to torment him by jokes against his country; but 
he showed his blood, and they were speedily soothed by 
his agreeable manners, and awed by the solidity of his 
acquirements. 

At the end of a year (as his brother James, Earl of 
Dunbar, had foretold), he was elected a King's scholar.r 
Beyond his own merits there must have been some 
powerful interest required to procure this step, for 
Westminster School was then crowded, and the found- 
ation was much coveted. I suspect that Bishop Atter- 
bury had said a good word for the scion of a noble Jac- 
obite family, — but of this there is no positive evidence. 

Soon after, Mr. Wemyss, the apothecary, wrote the 
following letter, addressed — 
"To 

The Right Honble 

The Viscountess of Stormont 
at her house near Dumfries 
By Carlisle Bag. 

" Madam, — I humbly beg pardon for my long silence ; 
had there been anything of moment to impart to your 
La^ I shou'd not have fail'd to have written. Y' La"" no 
doubt ha^ heard that y' son Mr. William has not only 
had merit but good luck to be chosen a queen's schoUar, 
ffor I can tell y' La^" that there is favor oftner that pre- 
vaills against meritt, even in this case as we'll as in 
other affairs of the world. Tho' give him his due there 
can't be a finer youth or one who minds his busines 
more closely. Y' La" sees that he spends a good deall 
of money. But he won't spend near so much next year. 
' 81 May, 1719. (Printed list of King's Scholan .) 




U)RD MANSI lELU. 



T719-J LORD MANSFIELD. zoy 

" I got 40 guineas, so y' La^' will see that I have laid 
out twelve pounds two shillings and jd. more than I 
rec^. I beg y' La'' wou'd cause pay it in to Mrs. Janet 
Cunningham, at her mother's house, Cannongate Cross, 
Edinburgh — the mother is my aunt, her name Wemyss 
— for it will be cal'd for pretty soon. I think to remitt 

some moey next week to Scotland ; so if y' La'' pleases 

I shall lay out what moey you think fitt in paying the 
other bills, w"*" will save you the exchang. My cuisne 

will give you a receit of the moey when it is pay'd her 
at Ed', w* shall be sufficient." Y' La'' ffriends abroad 
are weill." Pardon the trouble of my long 1". I had no 
mind to send the bills in this letter because of its bulk. 
But I shall next week in a frank. 

" I am. Madam, 
" Y' L"" most obedient servant, 

"J. Wemyss. 
" London, May 21, 1719." 

During the next four years of Mr. William's career at 
Westminster School the following is the only anecdote 
of him handed down to us : — 

' There is an item in Mr. Barclay's accounts showing that the balance 
bad been paid by him : 

1719. Oct. 17. It. Paid to Mrs. yanet Cuningham 22 lib. 

5J-. cid. star., on accompt of Mr. Wm. Murray, my 
Lord's son, on Mr. Wemyss letter to Mrs. yanet, 
and Mrs. yanet' s receipt and my Lord's verball order 
at Scone to pay it. Inde .... -£26^ 09 00 
Money for Mr. Wm.'s use appears to have been remitted by Mr. Barclay 
to Mr. Wemyss : 

1720. Jany. 28. It. To Peter Crawfurd, factor for a bill 

of £2$ ster., drawn by him payable to the Compter 
on George Middleton Goldsmith in London, and 
indorsed by the Compter at my Lord's order to 
James Weems, Apothecarie in London, for behoof 
of Mr. William Murray, my Lord's son — (he money 
and exchange to Peter Crawfurd being £2$ 10s. 

Inde £30b 00 00 

The bill had duly reached its destination, as appears from the following 
acknowledgment : — 

" Sir, — This comes to acquaint you that I have received the bill of 
25 lib. sent by my Lord Stormont's order for the use of his son Mr. 
William, whom is very weill. From " Sir 

"V humble Serv»., 
"June 26, 1720." "Jo. Wkmyss. 

• This IS probably a dark allusion t9 the court of the Pretender 



2IO LORD MANSFIELD. [1719— 

" Lady Kinnoul, in one of the vacations, invited him 
to her home, where, observing him with a pen in his 
hand, and seemingly thoughtful, she asked him 'if he 
was writing his theme, and what in plain English the 
theme was ? ' The schoolboy's smart answer rather sur- 
prised her ladyship — ' What is that to you ?' She re- 
plied, ' How can you be so rude ? I asked you very 
civilly a plain question, and did not expect from a 
schoolboy such a pert answer.' The reply was, ' Indeed, 
my lady, I can only answer once more. What is that to 
yoti ? ' In reality the theme was QuiD AD TE PER- 
TINET.'" 

I find general statements of his diligence and rapid 
progress in his studies : — 

" Fortunately," says a respectable biographer, " the 
school had never been in a more flourishing condition 
than at the period when he entered it. The number of 
the boys amounted to five hundred ; and, besides the 
advantage of having for their daily instructions two such 
eminent scholars as Drs. Friend and Nicholl, they were 
examined at elections by Bishop Atterbury, who at- 
tended in his capacity of Dean of Westminster, Bishop 
Smalridge as Dean of Christchurch, and Bentley as 
Master of Trinity College, Cambridge. The learned 
rivalry of such men could hardly fail to excite a cor- 
responding emulation among the young scholars who 
were in the habit of witnessing it ; and in the constant 
competition of talent to which this excitement must 
have given an additional stimulus, none shone more 
conspicuous than Murray. It is particularly recorded 
of him that his superiority was more manifest in the 
declamations than in any of the other exercises prescribed 
by the regulations of the school, — a fact not to be over- 
looked in the history of one who afterwards, as an orator, 
equalled if not exceeded such competitors as it falls to 
the lot of few nations or ages to possess. His proficiency 
in classical attainments was almost equally great.'" 

" During the time of his being at school,' says another 
who was^ctually his ch^m, "he gave early proof of his 
uncommon abilities, not so much in his poetry as in his 
other exercises, and particularly in his declamations, 

' HoUiday, p. a. » Welsby, Lives of Eminent Judges, p. 370. 



1723-J LORD MANSFIELD. 211 

which were sure tokens and prognostics of that eloquence 
which grew up to such maturity and perfection at the 
bar and in both houses of parliament.'" 

Certain it is, that, at the election in May, 1723, after 
a rigorous examination, it was found that William Murray 
was still " Dux," for he stood the first on the list of the 
King's scholars who were to be sent on the foundation 
to Christ Church. The following in an exact copy of 
his admission there: — 

"Trin. Term. 1723, June 18. 
Mi.. Xti. Gul. Murrao 18. 
David f. Civ. Bath. 
C. Som. V. Com. fil. T. Wenman, C. A." 

It will be observed that the place of his nativity is 
described as Bath instead of Perth. " Sir William Black- 
stone is said to have mentioned this curious circumstance 
to the Lord Chief Justice of the King's Bench while he 
had the honor to sit with him in that court ; when Lord 
Mansfield answered 'that possibly the broad pronunci- 
ation of the person who gave in the description was the 
origin of the mistake. ' "" Thfs person was no other than 
himself, and he most likely misled the registrar by aim- 
ing at an English pronunciation, and calling the place 
Parth, — being still under the delusion, which holds some 
Scotsmen all their lives, that what is not Scotch in pro- 
nunciation and in idiom must necessarily be English.' 

At this period of his life it was intended that he 
should take orders in the English Church ; and his 
family, if they did not hope that he would rise to be 
Archbishop of Canterbury, reckoned with confidence 
upon his being comfortably placed in a good college 
living. This last, probably, would have been his fate, 
and he would have been noticed after his death only in 
the parish register or in a pedigree of the Stormont- 
Murrays, had it not been for the accidental interference 

' Holliday, p. 2. ' Bishop Newton, p. 21. 

^ In this instan,ce he might easily have been misled by analogy, which 
can so little be trusted in English pronunciation, as e before r is often pro- 
nounced like an a : — Berkshire, Baarkshire ; Ckrk, Clark ; Serjeant, 
Sarjeant. P and B are easily misunderstood for each other, and the r would 
be hardly discernible between a and ih; — so that we have Perth converted 
into Bath. 



212 LORD MANSFIELD. \_i-m-— 

of an English nobleman wholly unconnected with him 
by blood or affinity. When he first left home, the no- 
tion of his being called to the bar in England had been 
talked of, but had been abandoned upon ascertaining 
that the expenses of a legal education were far greater 
in England than in Scotland, and would much exceed 
what the noble Viscount his father could afford. The 
young man himself acknowledged the necessity imposed 
upon him of taking orders ; but when at Westminster 
School, having occasionally visited the great hall and 
heard the pleadings of Yorke and Talbot, he felt (as he 
described it) " a calling for the profession of the law," 
and he regretted that he could not try the effect of his 
eloquence at the bar rather than in the pulpit, notwith- 
standing the advantage which, as an ecclesiastical orator, 
he would enjoy of being freed from all apprehension of 
immediate refutation or reply. About the time of his 
removal to Oxford, he had casually mentioned his dis- 
appointment to a school-fellow, a son of the first Lord 
Foley. This peer, who had amassed enormous riches 
from the invention of manufacturing iron by means of 
coal instead of wood, possessed a liberal and enlightened 
mind, and, having seen William Murray at his country 
house during the holidays, had discovered his genius, 
and had taken a fancy for him. Hearing that, on ac- 
count of the narrow circumstances of the family, he was 
going, rather reluctantly, to prepare himself for ordina- 
tion, instead of following the bent of his genius to study 
the law, he, in the most generous and delicate manner, 
encouraged him to enter a career for which he was so well 
qualified, and undertook to assist him with the requisite 
supplies till the certain success which awaited him should 
enable him to repay the advance with interest. The 
offer SQ handsomely made was frankly accepted, and it 
had the auspicious result of establishing a real friend- 
ship between the parties notwithstanding inequality of 
years. 

With the consent of his family, the arrangement was 
made that Murray should be entered of an Inn of Court 
while he remained an undergraduate at Oxford ; and, on 
the 23d day of April, 1724, he became a member of the 
Honorable Society of Lincoln's Inn, although he did not 



I727-] LORD MANSFIELD. 213 

begin to keep his terms there till he had taken his bach- 
elor's degree.' 

^ He resided at Oxford near four years, and made all 
his studies subservient to the profession which of his 
own liking he had adopted, — his energy being doubled 
from his considering the responsibility he had incurred, 
by deviating from the beaten track to obscure compe- 
tence which lay open before him. 

We have not any minute account of the disposition 
of his hours during his residence at Oxford, but we 
know that he escaped pretty well the two great perils to 
which he was exposed, ''Port and Prejudice." While 
Henley and other contemporaries were fostering the 
gout, and insuring premature old age, he preserved his 
constitution unimpaired. There is reason to think that 
he still inwardly cherished the high-Tory, or rather Ja- 
cobital, principles which he had imbibed under the pa- 
ternal roof; but he prudently concealed them, except on 
very rare occasions when he was heated by wine. Strange 
to say, in the atmosphere of bigotry which he breathed, 
although himself sincerely attached to the Episcopalian 
form of church government, he entertained and pro- 
fessed liberal sentiments on religion, and strenuously ad- 
vocated the cause of toleration against the universal 
voice of his companions, who, while they would have 
hesitated about burning Dissenters, were eager rigidly to 

' " Honbis Willus Murray filius p'. honblis Vicecomitis Stormont admissus 
est in Societatem hujus Hospicii vicesimo tertio die Aprilis anno regni Dni 
nri Georgii dei gra Magnse Britannize Fra & Hibnias Regis, &c. decimo 
annoq. Dni 1724. Et solvit ad usum Hospicii p'. d. ^'i y. ^d. 

„ ,. , ( Will. Hamilton. 

"Manucaptor^_y jjamilton. 
•• Admissus. John Washer." 
Half the dues for which he was liable before he began to reside and keep 
his terms was afterwards remitted to him : — 

" At a Council held the 12th day of November, 1728. 
"Upon the petition of the Hon"" William Murray, Esq", a fellow of this 

Society, praying leave to compound for his absent Comons, it is Ordered that 
he be at liberty to compound for the same on paymt of half w' is due to the 
Treasurer of this Society before the next Council ; but if the said Mr. Mur- 
ray shall within two years from this time be called to the Barr, sell his Cham- 
ber, or leave this Society, then it is Ordered that in either of the said cases he 
shall pay the rem' of w' is due for his Absent Comons." — Books of Lin 
coin's Inn, 



SI4 LORD MANSFIELD. [1725— 

enforce against them all the statutes by which they were 
deprived of civil privileges. 

Regular in chapel and at lecture, he did not neglect 
the peculiar studies of the place ; and, without joining 
in the superstitious worship of Aristotle, he had the dis- 
cernment to discover and the candor to acknowledge this 
philosopher to be the greatest master who had yet ap- 
peared, not only of the art of reasoning but of politics 
and literary criticism. Such discipline he submitted to 
in deference to authority : when he gratified the passion 
of his own bosom he devoted himself to ORATORY, by 
which his grand objects were to be accomplished. Those 
who look upon him with admiration as the antagonist of 
Chatham, and who would rival his fame, should be un- 
deceived if they suppose that oratorical skill is merely 
the gift of nature, and should know by what laborious 
efforts it is acquired. He read systematically all that 
had been written upon the subject, and he made himself 
familiar with all the ancient orators. Aspiring to be a 
lawyer and a statesman, Cicero was naturally his chief 
favorite ; and he used to declare that there was not a 
single oration extant of this illustrious ornament of the 
forum and the senate-house which he had not, while at 
Oxford, translated into English, and, after an interval, 
according to the best of his ability, retranslated into 
Latin. 

He likewise diligently practiced original composition, 
both in Latin and English, knowing that there is no 
other method by which correctness and condensation in 
extempore speaking can be acquired. From the fatal 
conflagration which destroyed his papers in 1780 there 
was preserved a fragment of a Latin Essay, written by 
him on a chef d'ceuvre of Demosthenes, Jlepl "Lrkipavov 
A few extracts from it may show his acquaintance with 
the dialect which he used, and his tasteful appreciation 
of the divine composition which he criticised. After 
stating the occasion of the oration, and analyzing its 
different divisions, he exclaims — 

" Qui solemnitate exordii animos auditorum incitat ! 
Deosque deasque omnes benevolentiae suae in civitatem 
testes adhibet ! Quam sibi modest^ meritorum in cives 
BUGS commemoratione ad se audiendum munivit viam 1 



«727-J LORD MANSFIELD. 



215 



Dum nihil aliud videter elaborare quam ut cum sequo 
animo judices audiant, efficit ut prosequentur benevolo. 
Mentlbus omnium ad lenitatem misericordiamque erga 
se revocatis, de legibus pauca disceptat. Qua subtilitate 
^schinis interpretationem oppugnat at evertit, suam 
defendit et probat : Quam acuta et enucleata est hsec 
tota disceptatio, quam pressa! Festinat enim ad res 
suas pro Republica gestas (quod validissimum causae 
firmamentum videbatur) orationem convertere et in 
uberiori administrationis suae campo spatiari."' 

Thus he praises the transition to invective, when the 
orator, like the dew descending in the evening on a 
parched field, had soothed the indignation excited by 
the peroration of his antagonist : — 

" Quis flexanimam Demosthenis potentiam digne ex- 
plicaverit, quae summissio placidoque principio in ani- 
mos omnium, velut in accensos agros taciturno roris im- 
bre leniter fluentes incendium quod reliquerit ^schines 
extinguit, populique furorem placat. Mox vehemens et 
acer vi quadem incredibili extra se, contra ^schinem 
calumniatorem odio, mercenarium Philippi contemptu 
proditorem patriae ira rapit."" 

In conclusion he draws a parallel between the re- 
spective chiefs of Greek and Roman eloquence ; giving 
on this occasion the preference to the former, although 

' " With that solemnity his exordium seizes the heart of his audience ! 
He adduces all the gods and goddesses as witnesses of his love for his 
■country. With what a modest reference to his own services does he pre- 
pare the way for a favorable hearing ! While he professes only to implore 
that they will listen to him with the impartiality of judges, he renders them 
all eager for his acquittal. Their minds being thus softened towards him, 
"he proceeds briefly to consider the legal and constitutional principles by 
which the cause was to be decided. With what sublety does he combat and 
■destroy the positions of ^schines — while he defends and establishes his 
-own ! How acute, how terse, and how condensed is this portion of his dis- 
■course ! For he hurries on to his own measures and to his administration 
of public affairs, upon which judgment was to be pronounced." 

'' " Who shall ever be able to explain the mastery of Demosthenes over 
the human affections ? Beginning in a mild and subdued tone, like dew 
gently descending on the parched fields, he extinguishes the flame which 
^schines had raised, and soothes the popular fury. But soon after, having 
become vehement and sarcastic, — with miraculous force he controls at will 
the feelings of his hearers, and holds up .riEschines to their indignation, 
hatred, and contempt, as a calumniator, as the mercenary tool of Philip, and 
.as the betrayer of his native land." 



2i6 LORD MANSFIELD, 

the latter was known really most to have occupied his 
time, and to have engaged his affections : — 

" Demostheni, qui sub historici person^ oratorum celat, 
qui felici e^audaciaquam Veritas sola parit, beneficiorum 
cives, benevolentise suae Deos testes adhibet, credimus et 
favemus. Cicero, placatis judicum animis quantum ipsi 
patiuntur accepit, tanta tamen ejus facundia, ut quidvis 
impetrare posse videatur. Non petit Demosthenes sed 
rapit, sed impetu quodam pene divino, sententias de 
eorum manibus extorquet. Dulci Ciceronis arte veluti 
Sirenum cantu, delectati judices cum illo malunt errare, 
quam cum aliis rectfe sentire. Demostheni tanta auc- 
toritas inest, ut pudent dissentire, et cum fulmine elo- 
quentise transversa feruntur auditores, non oratoris arte 
abripi, sed naturam sequi, sed rectse rationi se parere 
credunt. Cum orationes suas contra Clodium aut Cati- 
linam figuris auget, elocutione TuUius exornat, circum- 
stantis populi clamoribus etiam admiratione excipitur 
Cum Demosthenes contra ^schinem lis affectibus, qui 
ab ipsd naturd oriuntur, suam animat iracundiam, di- 
centis obliviscuntur Athenienses, et (ut historic proditum 
est) eodem furore omnes inflammati mercenarium ^schi- 
nem appellant." ' 

' " When Demosthenes, concealing the skillful advocate under the disguise 
of a plain narrator of facts, with that felicitous boldness which is supposed 
to spring from truth alone, appeals to his fellow citizens as witnesses of the 
benefits he has conferred upon them, and to the gods themselves to prove the 
ardent patriotism that had ever animated his bosom, we implicity believe all 
he says, and, warmly taking his side, we are impatient to see him vindicated 
and rewarded. Cicero having convinced the understandings of the judges 
before whom he pleads, they, after deliberation, pronounce in his favor the 
sentence which they think just; the eloquence displayed by him, however, 
being so brilliant that we conceive there is nothing which would not be con- 
ceded to. Demosthenes does not ask — he seizes — by an energy almost 
divine, he wrests from the hands of the judges the sentence which lie desires. 
Being captivated by the witching art of Cicero as by the song of the Sirens, 
they are better pleased to go astray with him than to decide righteously with 
others. Su';h authority does Demosthenes carry along with him, that his 
hearers are ashamed to differ from him, and, when struck by the lightning of 
his eloquence, they do not seem to be carried away by the art of the orator, 
but believe themselves to obey a natural impulse, and to yield to the dictates 
of right reason. When Cicero ornaments with the choicest figures of 
rhetoric and beauties of language his declamation against Clodius or 
Cataline, he is received with the admiration and plaudits of surrounding^ 
multitudes. When Demosthenes kindled rage against his accuser by giving. 
vent to feelings which seem to rise spontaneously in the human heart, the 
Athenian people forgot the crimes imputed to the accused, and (as history 



'727. J LORD MANSFIELD. 217 

This criticism shows that Murray, long before he ever 
spoke in public, had reflected nauch and deeply on the 
principles of the art in which, with a view to the dis- 
tant future, he was earnestly endeavoring to improve 
himself, and that he had been early accustomed to cal- 
culate by what means a particular effect is most likely to 
be produced on the passions or the understandings of a 
popular assembly. 

He continued, but with far less success, to cultivate 
the muses in the mechanical fashion which he had learned 
at Westminster ; and, on the death of George I., he en- 
tered into a competition with all the most accomplished 
versifiers than at Oxford to celebrate the praises of that 
poetry-hating monarch.' 

The art of grinding Latin verses must then have been 
extremely low at Oxford, for Murray's poem gained the 
first prize. I do not pretend to be by any means a nice 
judge of such compositions, but it seems to me a very 
wretched production, and I could point out much better 
imitations in the Mus^ Edinenses. Thus he begins 
with a description of the terrible blow by which the 
sword of fate had deprived the United Kingdom of 
George, the conqueror of the Rhine and Danube : — 

" Quo percussisti Britonis conjunctaque regna 
Ictu Fati ensis ! trepidant ipsa atria regum 
Ingentemque stupet moerens Europa ruinam. 
Georgius occubuit Rheni pacator et Istri : 
Et dubitamus adliuc animam accumulare supremis. 
Egregiam donis ? quondam decus omne Britannis. 
Spargite flore pio cineres, olseque Minerva 
Inventrix, et Phcebe pater cui laurea cura ! 
Hie Juvenis laurum sovit, longievus oblivum."'' 



relates), all inilamed with the same fury, hooted at yEschines as a wretch who 
had been suborned to bring a false charge against an innocent man." 

N. B. I am afraid that, from long disuse, my translation is very imperfect, 
although I once was accustomed to the exercise from which Murray is sup- 
posee to have derived such advantage. 

' Trying to speak English, when refusing to allow a poem to be dedi* 
cated to him, he exclaimed, " I hate all Boets and Bainters !" 

' " Thou sword of fate, with what a fearful blow 

Hast thou made England shake from top to toe. 
Lo ! Windsor's royal halls are filled with dread ; 
And Europe stunn'd, laments the mighty dead. 
See George, who both the Danube and the Rhine 
Subdued and civilized, at last resign 



2i8 LORP MANSFIELD. [1727. 

After expatiating at great length upon the achieve- 
ments and virtues of the deceased, lest the nation should 
be thrown into absolute despair by such a heavy priva- 
tion, he concludes with a panegyric on the " other hope 
of Britain," under whose enlightened sway they were 
about to live, and who was not less tenderly beloved by 
the gownsmen of Oxford than by his spouse. Queen 
Caroline: — 

" Tu tamen interea, quondam spes altera geritis 
Nunc decus et columen, popula plaudente, Britanno 
Succedis Solio ; ordinibus discordia cessit 
In te diversis, patriss vox una salutat. 
Hos inter plausus procerum plebisque benigno 
Accipias Rex ore, vovet tibi terga togata, 
Qu^, studiosa cohors operum ! pars parva tuorum 
Non ingrata tamen ; quoniam nee amantior ipsa 
Est Carolina tui, licet illi pronuba Juno 
Et Venus eeterna cinxerunt pectora flamma."' 

It is curious to think that the Elder Pitt, between 
whom and the two succeeding Georges there was such 
mortal enmity, on this occasion tried to gain the prize 
for extolling George I., — certainly in no degree superior 
to them — and is supposed by reason of his disappoint- 
ment, to have contracted a dislike of the fortunate can- 
didate, which he cherished to his dying day. No one 
could then have foreseen the more brilliant strife in which 

His throne and breath. And shall the grateful Muse 
Her tribute to such wondrous worth refuse ? 
No ! let Minerva strew with Phoebus here 
Her olive with his laurel on His bier, 
Whose warlike youth to laurell'd honor led. 
Whilst peaceful olive crown'd his aged head." 

* " But cease, my Muse, these fond lamenting strains ; 
Our rising hope, and now our glory reigns. 
Hark to that shout ! the people's joyful tone ; 
A second George ascends the British throne ! 
Lo ! discord ceases, all at once agree. 
United England looks, Great Sire, to thee. 
Amidst these sounds, whilst all at once rejoice, 
Thy band of Gownsmen raise their loyal voice, 
Though small indeed their offerings seem to prove, 
Deign to behold their merits in their love — 
Not Carolina's more, — though Juno's crown 
And Venus' form have mark'd her for thine own." 
The poet is signed — 

" GuL. Murray, 

Honoratiss. Vicecom, De Stormont, FiL 

.(Edis Christi alumnus." 



5 72 7-] LORD MANSFIELD. 219 

the rivals were afterwards engaged as leaders of the op- 
posite factions in the state." 

Murray having taken his degree of B. A., without any 
opportunity of testing his proficiency by Senate-house 
honors, was transferred to London. He obtained cham- 
bers in Lincoln's Inn," and began in good earnest to 
acquire a knowledge of his profession. While at Oxford 
he had attended lectures on the Pandects of Justinian, 
which gave him a permanent taste for that noble system 
of jurisprudence. 

Unfortunately we have only an imperfect account of 
the course of study which produced the most accom- 
plished Judge who ever presided in the Court of King's 
Bench. We know that he owed every thing to private 
and spontaneous exertion. The false maxim on which 
legal legislation now rests in England, " every man to 
learn as he likes,"' receives some countenance from his 
example. When there is a combination of enthusiasm 
and steady perseverance, the want of means of instruc- 
tion provided by the state is little felt, and tests of pro- 
ficiency by public examination may be dispensed with ; 
but I conceive that, in regard to the great mass of 
students entering a learned profession, it is necessary, 
by institution and discipline, to guide inexperience, to 
stimulate indolence, to correct the propensity to dis- 
sipation, and to have some assurance that those in- 
trusted in defending life and property are decently well 
qualified for the duties which they may be called upon 
to discharge. 

' The following is Mr. Macaulay's criticism on the unsuccessful lines of 
Pitt : — " They prove that the young student had but a very limited knowl- 
edge even of the mechanical part of his art. All true Etonians will hear 
with concern that the illustrious schoolfellow is guilty of making the first 
syllable in labenti short. The matter of the poem is as worthless as that of 
any college exercise that was ever written before or since. There is of 
course much about Mars, Themis, Neptune, and Cocytus. The Muses are 
earnestly entreated to weep over the urn of C^SAR : for Cesar, says the 
poet, loved the Muses ; C^SAR, who could not read a line of Pope, and 
who loved nothing but punch and fat women." — Essays, ii. 150. 

'' Till he had been several years at the bar he lived in a very small set, 
t'lree stories high, No. I, " Old Square," then called Gatehouse Court. They 
were pointed out to me when I commenced my career in a similar set, No. 2, 
three stories high, next door ; and there are several entries in the books of 
the Society connecting ^im with them. 

* Or " laissez rien faire." 



220 LORD MANSFIELD. [1727— 

During the three years that Mr. Murray passed as a 
student in Lincoln's Inn, all that the benchers required 
of him was to dine in the hall five days each term, and 
once a term to read the first sentence of a paper pre- 
pared for him by the steward, called " an exercise," a 
remnant of the ancient custom of scholastic disputation. 
But, by an admirable disposition of his time, while he 
mixed in society and still attended to elegant litera- 
ture, he was sedulously and skillfully preparing himself 
to be a great advocate and the greatest of judges. 

First, he thoroughly grounded himself in ancient and 
modern history by a perusal of the most eminent original 
historians. He then applied diligently to ethics, which 
he mastered, and from his own experience he always 
strongly recommended the philosophical works of 
Cicero. But he never showed any taste for metaphysics, 
which were now engrossing the attention of his country- 
men. The foundation of jurisprudence he maintained 
to be the Roman civil law. Thence he proceeded to 
international law, doing full justice to the learning and 
genius of Grotius, its codifier and almost its founder. 
Next he entered on the feudal law, without which our 
law of real property must be very imperfectly under- 
stood. Here he showed his discernment by taking for 
his guide and his favorite his countryman Craig, whose 
treatise De Feudis he justly thought was much to be 
preferred to any juridical work which England had then 
produced. Next came the English municipal law, and 
this he was obliged to search for in very crabbed and 
uncouth compositions, which often filled him with dis- 
gust and sometimes with despair. He was pleased with 
Bracton, and could not deny the terseness and perspi- 
cuity of Littleton ; but he never could be made to fall 
down and worship Lord Coke, whom we are taught to 
regard as the god of our idolatry. Nay, he was unjust 
to the merits of this quaint and immethodical though 
learned and accurate writer, and used constantly to be 
laughing at his etymologies, — as, that "parliament is 
derived from parler le ment ;" and his trying to give 
reasons for all that the law enacts, as his defense of the 
old sentence of mutilation in high treason, " to show 
that the traitor ought to have had no ancestors, and 



I730-J LORD MANSFIELD. 221 

should have no posterity." Indeed, instead of being, 
like Sir William Blackstone, a legal optimist, he did not 
sufficiently appreciate the merits of the old common 
law ; overlooking the love of public liberty displayed by 
many of its maxims, and its admirably contrived ma- 
chinery for separating questions of law from questions 
of fact, and for bringing a suit to the real point on which 
it ought to be determined. But he submitted to the 
drudgery of toiling through tiresome text-books and 
rubbishy reports, and he became as well acquainted with 
" collateral warranties" and " recoveries with double 
voucher" as lawyers who, never traveling beyond their 
black-letter lore, venerated these processes as the per- 
fection of human reason. 

Expecting to be employed in appeals from Scotland, 
which, since the Union, were decided at the bar of the 
House of Lords, he paid much attention to the law of 
that country, and he expressed satisfaction with the me- 
thodical arrangement and precise definitions of McKen- 
zie and Stair. But his true delight was to dip into the 
juridical writers of France, that he might see how the 
Roman and feudal laws had been blended in the differ- 
ent provinces of that kingdom ; and above all to pore 
over the admirable commercial code recently promul- 
gated there under the title of " ORDINANCE DE LA MA- 
RINE," which he hoped one day to introduce here by 
well-considered judicial decisions, — a bright vision which 
was afterwards realized. 

He never had the advantage of being initiated in the 
mysteries of legal warfare by any practitioner ; the pu- 
ptlizing system, now in such vigor, having been intro- 
duced in the following generation by the celebrated 
Tom Warren' and Mr. Justice Buller.'' He attended a 
debating society, where knotty questions of law were 
discussed ; and such pains did he take in getting up his 
arguments, that the notes he then made were frequently 
of use to him when he was at the bar, and even after he 
had been elevated to the bench. But his principal re- 

' My great-great-grandfather in Law. 

'' Lord Macclesfield and Lord Hardwicke had each sat in a law office 
before being called to the Bar; but the former had been an attorney, and 
the latter was intended foi one. 



«2 LORD MANSFIELD. [1727— 

source for gaining experience was attending the courts 
at Westminster and listening to the judgments of Chief 
Justice Raymond. He continued to think that, in the 
absence of academical lectures and examinations, such 
an attendance is the best opportunity which candidates 
for the bar enjoy of gaining a liberal knowledge of their 
profession. For this reason, considering it for the wel- 
fare as well as for their advantage individually that they 
should be properly instructed, — when presiding in the 
King's Bench he was in the constant habit of explaining 
the intricacies of the cases tried before him, and giving 
the reasons of his judgments, not only to satisfy the 
parties, but, as he expressed it, " for the sake of the 
students." ' 

The marvelous circumstance is, that, in the midst of 
these multifarious and' severe studies, Mr. Murray was 
" drinking champagne with the wits." " I am almost 
afraid to record it, lest it should seduce some heedless 
youths into the false and deceitful notion that dis- 
sipation is compatible with success in our profession. 
But let them remember, that before he went to Will's 
or Button's he had been eight or ten hours busily em- 
ployed in professional studies ; and that, when he as- 
sociated with gay companions he never so indulged as 
to be prevented from rising to light his own fire next 
morning, or fromsitting down to his books with a sound 
stomach and a clear head. Above all, before they ex- 
pose themselves to temptation, let them wait till such 
noctes cocenoeque deum as were enjoyed by Murray are 
actually in their power. 

The most intimate and familiar friend he had in the 
world was ALEXANDER PoPE ! ! ! To this prince of 
poets he had been introduced while at Westminster 
School, by his countryman Lord Marchmont, and a 
warm and steady attachment sprang up between them. 
The young Scot was at first exceedingly flattered and 

' I began my legal studentship in the last days of Lord Kenyon. The 
court at Westminster was so constructed, that we could have no communi- 
cation with him ; but I have a lively recollection that at Guildhall, the 
students having a box close by him, he handed the record to us, and he 
would point out to us the important issues to be tried. I do not remember 
that he ever publicly alluded to our presence. 

' Boswell's Life of Johnson. 



1730-] LORD MANSFIELD. saj 

delighted by the notice of a writer of such celebrity, 
whose Pastorals he had got by heart when a child, but 
whom, till he was sent to England, he had never hoped 
to behold. Afterwards h'e had the good taste to relish 
the exquisite powers of conversation which the bard 
could display in the company of those he liked, and he' 
was touched by experiencing constant kindness from 
one who was disposed to treat nobles and kings with 
disdain. Pope, on the other hand, intuitively dis- 
covered the genius of his juvenile worshiper, was struck 
by his extraordinary accomplishments, agreeable man- 
ners, ingenuous countenance, and (it is said), above all, 
by the silvery tones of his voice, which seemed then, and 
ever after, to have doubled the effect of all his other 
powers to win his way in the world.' In such favor was 
Murray, that when he had adopted the law as his pro- 
fession, and he came to reside as a student at Lincoln's 
Inn, the autocrat of the literary world, anxious for his 
success, actually undertook to teach him oratory ; — not 
the composition of orations, but the varying attitudes 
and intonation with which they should be delivered. 
Murray had frequent invitations to Twickenham ; and 
Pope, coming to Lincoln's Inn, would spend hours in 
instructing him. One day the pupil was surprised by a 
gay Templar, who could take the liberty of entering his 
rooms without the ceremonious introduction of a servant, 
in the act of practicing the graces of a speaker at a glass, 
while Pope sat by in the character of preceptor. Bishop 
Warburton accounts for the extraordinary marks of 
kindness which Murray thus experienced : — " Mr. Pope 
had all the warmth of affection for this great lawyer, 
and indeed no man ever more deserved to have a poet 
for his friend ; in the obtaining of which, as neither 
vanity, party, nor fear had a share, so he supported his 
title to it by all the offices of a generous and true 
friendship." ' 

Lord Mansfield's biographers represent him as now 
making the " grand tour," and, from the language they 

• The fanciful may suppose that their harmony arose from vocal unison. 
Dr. Johnson, in his Life of Pope, says, " His voice when he was young, 
was so pleasing, that he was called in fondness the litilt nightingale!' 

* Annotations on Pope's Imitation of the Sixth Epistle of the First Book 
of Horace. 



234 LORD MANSFIELD. [1730- 

employ, it might be supposed that he spent several years 
in wandering over distant lands and sojourning at foreign 
courts." He did cross the English Channel, but, upon 
examining dates, it will be found that his " travels over 
the continent of Europe " shrink into a long-vacation 
trip to France and Italy, which most practicing lawyers 
have taken. On the 24th of June, 1730, after keeping 
Trinity Term at Lincoln's Inn, he was present in the 
schools at Oxford, and, with the usual forms, received 
the degree of M.A. On the 23rd day of November 
following, he was called to the bar in Lincoln's Inn 
Hall ; and he probably had returned some weeks pre- 
viously, to make preparations for commencing his pro- 
fessional career." I believe there is not extant any 
account of his adventures — but thus speculates one 
author, who would have us believe that, as Gibbon con- 
ceived the plan of his "Decline and Fall" on viewing 
the ruins of the Capitol, so Murray was first fired with 
the ambition of being a great lawyer and orator on 
beholding the scene where Cicero had triumphed : — 

" At Rome Mr. Murray was probably inspired and 
animated with the love of Ciceronian eloquence ; at 
Rome he was prompted to make Cicero his great ex- 
ample and his theme. At Tusculum, and in his per- 
ambulations over classical ground, why might he not be 
emulous to lay the foundation of that noble super- 
structure of bright fame which he soon raised after he 
became a member of Lincoln's Inn." " 

I make no doubt that, ever industrious and eager for 
improvement, he turned his jaunt of two or three months 
to the best advantage, and that, having introductions to 
our ministers abroad and to the most eminent literary 
characters in the cities which he visited, he saw, and 
reflected and profited more in this short interval than 

' Lord Brougham describes him as " enjoying all the advantages of a 
finished classical education ; adding to this the enlargement of mind derivea 
from foreign travel, undertaken at an age when attentive obset vation can bt 
accompanied by reflection." (Statesmen, i. 100.) 

* "At a Council held the 23rd day of Nov., 1730. — Ordered that the 
Hon"' W". Murray, Esq", one of the fellows of this Society, being of full 
standing, and having performed all his exercises, be called to the bar, first 
paying all his arrears and duties to this Society ; and that he be published 
at the next Exercises in the Hall." 

• Ilolliday, pp. g, lo. 



«730-] LORD MANSFIELD. 225 

the ordinary "sons of earth," who waste years on the 
Continent, chiefly employed in critising the performances 
of opera singers, or in exposing themselves to ridicule 
for their determined adherence to English prejudices 
and absurdities. 

When he put on the long robe, it may be safely 
affirmed that there had not hitherto appeared at the 
English bar a young man so well qualified by his ac- 
quirements to follow the law as a liberal profession 
Without having become a deep Wacb letteil lawyer, he 
was scientifically familiar with our municipal jurispru- 
dence, and capable of conquering any particular point 
in it which he might have occasion to encounter. He 
had made himself acquainted not only with international 
law, but with the codes of all the most civilized nations, 
ancient and modern; he v/as an elegant classical scholar; 
he was thoroughly imbued with the literature of his own 
country ; he had profoundly studied our mixed con- 
stitution ; he had a sincere desire to be of service to his 
country ; and he was animated by a noble aspiration 
after honorable fame. A very different being this from 
the dull plodder, who, having gained a knowledge of 
forms and technical rules, looks only to make his bread 
by law as a trade — or the empty adventurer, who expects 
to secure wealth and high office by a flashy speech ! 
Ill — 15. 




CHAPTER XXXI. 

CONTINUATION OF THE LIFE OF LORD MANSFIELD 

TILL HE WAS MADE SOLICITOR GENERAL AND 

ENTERED THE HOUSE OF COMMONS. 

MURRAY remained at the bar above two years 
without a brief, or, at least, without being eni- 
ployed in a cause of importance. During this 
trying interval his courage fully supported him, and, 
although he must have passed anxious moments, he still 
felt the confidence of ultimate success which genius 
sometimes prompts. His friends were most afraid, from 
his literary connections and propensities, that he would 
be induced to relax his resolution to raise himself by the 
law, and that he would attempt authorship or pre- 
maturely mix in political strife. The recent examples 
of Addison and Prior were very seducing to those who 
might be disposed to prefer the primrose path of poetry. 
But Murray now, and ever after, displayed a rooted at- 
tachment to his profession, and a firm purpose to estab- 
lish his reputation by reaching its highest honors. He 
therefore actually declined an offer made to him to bring 
him immediately into parliament, — being convinced that 
a barrister ought not, in prudence, to expose himself to 
this distraction till he is fully established in practice and 
may fairly expect to be appointed Solicitor General ; 
and we shall see that he afterwards preferred a seat on 
the bench to the leadership of the House of Commons 
and the near prospect of being Prime Minister. I do 
not believe that he looked upon the fame of a great 
judge with more respect than that of a great poet or a 
great statesman, but he made a prudent estimate of his 
own powers. He certainly had not sufficient imagina- 
tion for poetry, or moral courage for statesmanship, al- 
though his fine understanding and his eloquence were 
sure to command success in the career on which he had 



I730-J LORD MANSFIELD. 227 

entered. Thus, in the words which he himself employed 
" he had genius and resolution enough to raise himself 
above the common level : 

' Victorque virum volitare per ora.' " 

Never absent from chambers when there was a possi- 
bility of a client calling to consult him, or from West- 
minster Hall when a diligent young barrister ought to 
be seen there, he still contrived to keep up an inter- 
course with the witty and the powerful. He now took 
chambers at No. 5 King's Bench Walk, in the Temple ; 
and here Pope frequently visited him in the evening, to 
save him from the suspicion of neglecting his profession 
by haunting coffee-houses, as he had allowed himself to 
do while a student. We may easily imagine that the 
lawyer and the poet occasionally met at the Grecian, 
or Dick's, or The Devil's Tavern, which were close by, — 
or in the shop of Lintot between the two Temples, or 
that of Tonson in Chancery Lane ; or that they went 
together to the theater in Lincoln's Inn Fields, to see 
the performances of Betterton and Mrs. Clive ; — but for 
such meetings I find no authority; and we must tell 
what we know to be true, not what we consider to be 
probable. 

Murray continued as eager as when he was a student 
under the bar to increase his store of professional learn- 
ing, and by no means (after the common fashion of law- 
yers who have had an academical education) abandoned 
liberal studies. Through the busiest part of his life he 
found time to keep up his acquaintance with the Greek 
and Latin classics, and to gain a knowledge of new pub- 
lications of merit soon after they issued from the press. 
In an interval of leisure he showed that he was qualified, 
like M. Guizot, the Prime Minister of Louis Philippe, to 
gain celebrity as a professor in a university. For the 
benefit of the heir of the -ducal house of Portland, he 
wrote two very long letters to that young nobleman 
" On the Study of Ancient and Modern History," — 
which would constitute an admirable syllabus for a 
course of lectures. It is with some humiliation that I 
look to the members of the profession at the present day 
without being able, either at the bar or the bench, tq 



228 REIGN OF GEORGE II. ti733- 

discover any one with such an extensive, exact, and 
philosophical acquaintance with historical books, his- 
torical events, and historical characters. You would 
suppose that .he had lived in every age which he de- 
scribes, — having witnessed the occurrences which he 
narrates, and conversed with the men to whom he pre- 
sents his readers, In ancient history I think he most 
excites admiration by his remarks on the causes of the 
decline of the Roman empire, which, even with the 
assistance of Montesquieu and Bossuet, till Gibbon arose 
few so thoroughly understood. The familiarity which 
he displays with modern history is quite astounding, — 
and I had almost said appalling, for it produces a painful 
consciousness of inferiority, and creates remorse for time 
mis-spent. He seems to have carried in his memory 
every remark of every French historical writer from 
Philip de Comines to Voltaire ; and by a few masterly 
strokes he gives a better notion of Clovis, Charlemagne, 
Louis XI., and Henry IV., than is to be gathered from 
perusing many tomes of ordinary book-makers.' Some 
will regret that he did not devote himself to historical 
composition, and so wipe off the reproach which in this 
department of our literature attached to it before the 
age of Robertson and Hume. But I must proceed to 
show what benefits he conferred on the community in 
the employments to which his destiny carried him. 

It has often been said that Lord Mansfield " never 
knew the difference between total destitution and an in- 
come of ;f 3000 a year.'" This is a common instance of 
a perversion of truth from a love of the marvelous. He 
had been above seven years at the bar before his gains 
reached or approached this amount ; but from his third 
year, at all events, he had very encouraging practice, 
and he must have been comparatively wealthy. 

He had long before dedicated his first professional 
earnings to the purchase of a set of tea china, with suit- 

' HoUiday, 12-23. Murray seems to have had rather an excessive ad- 
miration of French genius, to which Scotsmen are liable ; and he had a 
respect for Voltaire which few now would have the courage to confess, for, 
since the French Revolution, an indiscriminate abuse of this author has 
been in England tlie text of orthodoxy and loyalty. 

' Character of Lord Mansfield by Mr. BuUer- Seward's Anecdotes, i» 
4g2 ;-K(>aCoe's Eminent Lawyers, 171. 



1 733-] LORD MANSFIELD. 229 

able silver plate, for his sister-in-law, Lady Stormont, 
who, after his father's death, had sent him not only sup- 
plies of Scotch marmalade, but pecuniary contributions 
to assist him while he was a student at Lincoln's Inn. 

The earliest success he met with was, as he had antic- 
ipated, at the bar of the House of Lords. Sir Philip 
Yorke and Talbot were there always opposed to each 
other as leaders. In Scotch cases, Mr. W. Hamilton, 
a Scotch advocate, (father of Single-speech Hamilton,) 
having settled in London soon after the Union, was 
almost always the junior on one side ; and Murray, from 
a good word spoken in his favor by his friends to the 
Scotch solicitors, and from the pains-taking disposition 
for which he soon gained credit, was generally on the 
other. 

He attracted much notice as counsel for the Respond- 
ent, along with Mr. Talbot, against Sir Philip Yorke 
and Mr. Hamilton, in the case of Patterson v. Graham, 
heard on the 12th of March, 1732-3. Although this was 
an appeal from the Court of Session, it excited very 
lively interest, and persons in all ranks of life crowded 
to the bar of the House of Lords to listen to the argu- 
ments upon it, for it related to the South Sea Bubble, 
which had propagated an epidemic madness in the na- 
tion. The respondent, residing in the city of Edinburgh, 
to which the malady had penetrated, employed the ap- 
pellant in London to buy some South Sea stock when 
it was at an extravagant height, and was expected to 
rise still higher. But immediately after the purchase it 
fell down to nothing, and was utterly unsalable and 
worthless. The respondent then sued the appellant for 
damages, on the ground that he had been deceived and 
defrauded; and the Scotch judges, out of compassion to 
their countryman, decreed that the appellant, the Eng- 
lish broker, should reimburse him to the amount of the 
purchase-money and interest at 5 per cent. Mr. Murray 
tried to support this decree by much ingenuity, and by 
a very striking description of the frauds practiced by the 
concoctors of the late gigantic conspiracy and the suf- 
ferings of their victims. He was unsuccessful ; for the 
House of Lords yielded to the reasoning on the other 
side, that his client had only to blame his own covetous- 



230 REIGN OF GEORGE II. \.il3i— 

ness and credulity, but he excited great admiration by 
the gallant stand he had made in an unequal fight.' 

In a few days after, he gained still higher credit as 
counsel for the young Marquis of Annandale, who was 
in a state of mental imbecility, and whose companion or 
keeper was the philosopher David Hume. The action 
respected the expenses incurred in the funeral of the 
late Marquis, which had been conducted in a style of 
prodigious splendor, without any authority from his 
executors. There being no decisions whatever in point, 
the case was to be decided by the principles of the Ro- 
man Civil Law ; and Murray contended, with much 
force, that, according to the just view of the Actio 
Funeraria, the demand could not be supported. This 
seemed to be the opinion of the House ; but their Lord- 
ships, not deeming it for the honor of the peerage that 
a tradesman should suffer who had wished to do honor 
to a deceased member of their body, deferred giving 
judgment, and there was a compromise between the 
parties." 

lu the following session he distinguished himself still 
more in the case of Moncrieff v. Moncrieff. Sir Thomas 
Moncrieff, a baronet of ancient family, but of small for- 
tune, with five children, gave the eldest son a liberal edu- 
cation, and wished him to embrace some profession to 
enable him to make his way in the world. The young 
gentleman, however, preferred being idle ; and, after a 
course of dissipation, married against his father's con- 
sent. Sir Thomas, incensed at his conduct, refused to 
see him till by amendment of life he should deserve for- 
giveness, but settled upon him an annual allowance of 
2000 marks Scotch, making £\\i sterling. A process 
was then commenced in the Court of Session against the 
father by the son, who claimed as of right an augmenta- 
tion of this stipend ; and the Scotch judges, strangely 
hallucinating, decreed him ;^200 sterling a year. — Mr. 
Murray, for the apellant, argued thus : — 

" In the admitted absence of any statute, or positive 
rule, or prior decision upon the subject, will any ex- 

' Lords' Journals ; printed Case, preserved in the Library of the House 
of Lords. 

'^ lb. Murray's leader in this appeal was Duncan Forbes of CuUoden, 
afterwards President. 



1737-] LORD MANSFIELD. 



231 



pounder of the law of nature, on which the claim is 
rested, say that parents who have properly reared their 
offspring are bound to maintain them in idleness when 
they are grown up and by industry might easily obtain 
a maintenance for themselves ? or that a son ' who 
hearkeneth not to the voice of his father,' and who there- 
fore by the law of Moses was declared ' worthy of death,' 
cannot forfeit this claim by disobedience ? Sir Thomas 
Moncrieff has actually allowed the respondent a sum 
sufficient not only to supply him with the necessaries, 
but in that cheap country, with all the conveniences of 
life. That a son, beyond a necessary subsistence, has a 
right to a determinate part of his father's property to 
waste in superfluities, is what was never pretended in 
any part of the world. By the law of Scotland a man 
seized in fee simple may disinherit his son, which pro- 
ceeds upon the supposition that he has an absolute 
power over it during his life. If this action is founded 
on the law of nature, nature knows no distinction be- 
tween the eldest and the youngest child, or between a 
provision for sons and for daughters ; and as the ap- 
pellant has four other children with the same rights as 
the respondent, if this decree stands they are entitled to 
sue him for more than all he has in the world to divide 
among them, and they may leave him to perish for 
want." 

The House sustained the appeal, and reduced the 
allowance to the sum which the appellant had offered.' 

Murray was complimented several times, both by 
Lord Cowper and Lord Macclesfield, upon the talent he 
had exhibited in arguing these cases ; and thenceforth 
he was retained in almost all the appeals heard at the 
bar of the House of Lords, from whatever part of the 
kingdom they came. 

In 1737 he acquired immense eclat as counsel against 
the bill introduced to disfranchise the city of Edinburgh 
on account of the alleged misconduct of the inhabitants 
in putting Captain Porteus to death. He dwelt with 
much force on the insult about to be offered to the 
capital of Scotland; he pointed out the injustice of 
punishing the many for the supposed offense of the 
' Lords' Journals, 1733 ; HoUiday, 30, 31. 



232 REIGN OF OEORGE II [1737- 

few ; and, although he could not justify the violence 
which had been committed, he strongly insinuated that 
the spirit of wild justice which had been displayed, the 
calmness and solemnity with which the deed had been 
done, and the utter impossibility of ever detecting, by 
enormous rewards, the individuals personally engaged 
in it, redounded to the honor of the Scottish nation. 

The measure was defeated ; the freedom of the city 
of Edinburgh was voted by the corporation to Mr. 
Murray for the zeal and ability he had displayed as their 
advocate, and prophesies were uttered copiously all over 
Scotland that he would one day confer high honor on 
his country.' Hitherto, however, he had fared rather 
indifferently in Westminster Hall. He did not addict 
himself to any one court in particular ; but, without a 
regular flow of business, he went where a stray brief 
might carry him. 

His name does not yet appear in the Common Law 
or Equity Reports ; but we knov/, from his own state- 
ment when Chief Justice of the King's Bench,' that, 
in the year 1736, he was counsel before Lord Talbot in 
the great case of Buvot v. Barbut, where, from his rep- 
utation for acquaintance with the law of nations, he 
was called upon to argue the question " whether a 
foreign minister can, by engaging in commerce, waive 
his privilege from arrest ?" and " whether an agent of 
commerce, or a consul, is entitled to the privileges of a 
public minister? " Although he was too modest to say 
so, we need not doubt that he eminently distinguished 
himself on this occasion. • 

But still his fee-book, when summed up at the end of 
the year, showed only a very moderate figure ; and, ac- 
cording to the graduated gratitude of the old pro- 
thonotary, although he ought to have written at the 

^ See Pari. Hist., vol. x. p. 187. At aa was passed merely to disqualify 
Wilson, the Lord Provost, and to impose a small fine upon the city. (10 
Geo. II. t. 34.) Gilbert Elliot, the ancestor of the Earl of Minto, then a 
boy of fourteen, afterwards Lord President of the Court of Session, and 
author of the song celebrated by Sir Walter Scott in the Lay of the Last 
Minstrel, " Ambition is no cure for Love." wrote an encomiastic copy of 
verses on Mr. Murray for his patriotic exertions, which may be found in- 
Holliday, p. 35. They are not so promising as might have been expected. 

* E. T. in Cases temp. Talbot, 181. See Burrow. HoUiday must be 
wrong, making it 1754. See case in my Life of Talbot. 



1738.] LORD MANSFIELD. 233 

bottom of the page Laus Deo ! he was not yet called 
upon for Laus magna ! ! still less Laus maxima Deo ! ! ! 
For this reason, in spite of his rising fame, he met 
with a sad disappointment in an affair of the heart. 
Without being of a romantic turn of mind he was sincerely 
attached to a young lady of beauty, accomplishments, 
and birth, and she listened favorably to his suit ; but 
her family, requiring a sight of his rent-roll, were not 
contented that her jointure and pin-money should be 
charged upon his " rood of ground in Westminster 
Hall," and married her to a squire of broad acres in a 
midland county. As he was exceedingly dejected by 
this event, his friend Pope tried to cheer him by ad- 
dressing to him an imitation of the Sixth of the First 
Book of Horace's Epistle (" Nil admirari," &c.), thus 
beginning : — 

" ' Not to admire, is all the art I know 

To make men happy and to keep them so.' 

Plain truth, dear Murray, needs no flowers of speech ; 

So take it in the very words of Creech." 

After pointing out various instances of the vanity of 
human wishes, he thus proceeds : — 

" If not so pleased, at council board rejoice 
To see their judgments hang upon thy voice ; 
From morn to night, at Senate, Rolls, and Hall. 
Plead much, read much, dine late, or not at all. 
But wherefore all this labor, all this strife. 
For fame, for riches, for a noble wife ? 
Shall one whom native learning, birth conspired 
To form, not to admire, but be admired. 
Sigh while his Chloe, blind to wit and worth, 
Weds the rich dullness of some son of earth ? 
Yet time ennobles or degrades each line ; 
It brighten'd Craggs's, and may darken thine. 
And what is fame ? the meanest have their day ; 
The greatest can but blaze and pass away. 
Graced as thou art with all the power of words, 
So known, so honor'd in the House of Lords — ' 
Auspicious scene ! another yet is nigh. 
More silent far, where kings and poets lie ; 
Where Murray, long enough his country's pride. 
Shall be no more than Tully or than Hyde." 

' Such discrepancy is there between Law and Poetry, that Pope him- 
self cannot pay a compliment to a lawyer without giving a specimen of 
the bathos. These two lines were happily ridiculed in CoUey Gibber's 
parody : — 

" Persuasion tips his tongue whene'er he talks ; 
And he has chambers in the King's Bench walks" 



234 REIGN OF GEORGE II. [1738, 

Murray, still disconsolate, took a small cottage on the 
banks of the Thames, near Twickenham, to which he 
retired, that he might nourish his regrets. The un- 
wearied friendship of the poet then prompted his 
exquisitely beautiful imitation of Horace's Ode to 
Venus : — ' 

" Again ? new tumults in my breast ? 

Ah, spare me, Venus ! let me, let me rest ! 
I am not now, alas ! the man, 

As in the gentle reign of my Queen Anne, 
Ah, sound no more thy soft alarms. 

Nor circle sober fifty with thy charms. 
Mother too fierce of dear desires. 

Turn, turn to willing hearts your wanton fires ; 
To number five direct your doves, 

There spread round Murray all your blooming loves j « 

Noble and young, who strikes the heart 

With every sprightly, every decent part ; 
Equal the injured to defend. 

To charm the mistress or to fix the friend ; 
He, with a hundred arts refined. 

Shall stretch thy conquests over half the kind. 
To him each rival shall submit. 
Make but his riches equal to his wit. 
Then shall thy form the marble grace, 
Thy Grecian form, and Chloe lend the face ; 
His house, embosom'd in the grove, 
Sacred to social life and social love. 
Shall glitter o'er the pendent green. 
Where Thames reflects the visionary scene : 
Thither the silver sounding lyres 
Shall call the smiling Loves and young Desires; 
There every Grace and Muse shall throng, 
Exalt the dance, or animate the song ; 
There youths and nymphs, in consort gay, 
Shall hail the rising, close the parting day." 

The soothing effect of this rivalry of youths and 
nymphs, graces and muses, smiling loves and young de- 
sires, would have been very doubtful ; but Murray was 
cured by the return of Michaelmas Term, which recalled 
him to Westminster Hall, and by the turmoil of attor- 
neys and solicitors, jurymen and witnesses, noisy coun- 
selors and prosing judges. 

All his energies were soon after called forth by receiv- 
ing a brief in a crini. co7i. cause of much expectation. 
The lady who was the subject of it, a sister of Dr. Arne 
the composer, possessed exquisite beauty and attrac- 

' Odes, book iv. ode I. 



1738.1 LORD MANSFIELD. 



«35 



tions. She was a favorite actress, and the whole town 
had been lately occupied with the notable dispute be- 
tween her and Mrs. Clive as to which of them should 
perform the part of Polly Peachum in the Beggar's 
Opera. She had been married to the worthless son of 
the famous Colley Gibber : many stories were circulated 
of her gallantries, and from among her many lovers 
Colonel Sloper, the one selected as a defendant in this 
action, had a distinguished name in the fashionable 
world. Murray was only junior counsel for him ; but in 
those days, when long speeches were unknown, all the 
counsel were permitted to address the jury, and he 
had a fair chance of an opportunity to show off his 
eloquence. 

A story was fabricated, and has been repeated a hun- 
dred times, that he emerged from obscurity and made 
his fortune on this occasion by the accidental illness of 
his leader. Nay, we are circumstantially told that " on 
Sergeant Eyre's sudden seizure in court, when about to 
speak for the defendant, the duty of the senior devolved 
on the junior counsel, who at first modestly declined it 
for want of time to study the case, and that the judge, to 
indulge him, adjourned the trial for about an hour." ' Not 
only is this fit of poor Sergeant Eyre unnoticed by the 
contemporary accounts of the trial which were printed, 
but they actually give us his speech to the jury, which 
seems to have been " hot and heavy," as became the 
coif." Mr. Murray followed, and was much more lively 
and impressive. In truth, it was a most infamous action, 
and now-a-days, on the maxim ^'■volenti non fit injuria" 
the plaintiff would have been nonsuited, for he had con- 
nived at his own dishonor ; and it was proved that, when 
Colonel Sloper and Mrs. Gibber were in bed together, he 
had brought them a pillow and put it under their heads. 
The Magazines' are rapturous in their praise of Mr. 
Murray's performance, but give us a very meager ac- 
count of it ; and my readers, making allowance for bad 
reporting, must not conclude that it was feeble from 

' HoUiday, p. 35. 

' Legal conundrum : — " Why is a Sergeant's speech like a tailor's 
goose?" A. "Because it is hot and heavy!" 

' Reporting law trials in newspapers did not begin till long after. 



2^6 REIGN OF GEORGE II. [1738, 

the following extract, which is the most favorable I can 
find:— 

" The plaintiff tells his servant that ' Colonel Sloper 
is z. good-natured boy.' To this boy he resigns his wife, 
from this boy he takes money to maintain his family, 
and then he comes to a court of justice arid to a jury of 
gentlemen for reparation in damages. It devolves on 
you, gentlemen, to consider the consequences of giving 
damages in a case of this nature. Infinite mischiefs 
would ensue if it should once come to be understood in 
the world, that two artful people, being husband and 
wife, may lay a snare for the affections of an unwary 
young gentleman, take a sum of money from him, and 
then come to extort more with the assistance of twelve 
jurymen. I desire to be understood as by no means an 
advocate for the immoralities of my client ; but remem- 
ber, gentlemen, this is not a prosecution seeking punish- 
ment for the sake of the public ; the only question here 
is, whether the plaintiff has been injured, and surely he 
cannot justly represent himself as injured if he has not 
only consented but received a high price for that which 
he does not at all value. However, gentlemen of the 
jury, if it be thought requisite to find a verdict for the 
plaintiff, we have not a denomination of coin small 
enough to measure the damages." 

The jury found a verdict for the plaintiff, with ;^io 
damages, said to be "a piece of bank paper of the 
smallest value at that period in circulation.'" 

Mr. Murray's eloquence was the theme of universal 
applause ; and, in spite of misrepresentation and exag- 
geration, there can be no doubt that this speech, de- 
livered in common professional routine, placed him at 
the head of the bar. He never countenanced the fable 
of Sergeant Eyre's fit, and knew well that he had reaped 
the fruit of premeditation and study ; yet he used to 
talk of this trial with much complacency, and to say, 
" Henceforth business poured in upon me from all quar- 
ters, and from a few hundred pounds a year, I fortu- 
nately found myself in the receipt of thousands." 

' HolUday, 36 ; Selwyn's Nisi Prius, 10. Lord Kenyon, in Duberly v. 
Gunning, 4 Term Reports, 654, represents the verdict in Cibber v. Sloptr 
to have been for the defendant ; but he was quite mistaken. 



1738.] LORD MANSFIELD. 



257 



The most distinguished cliei.t who solicited his patron- 
age was Sarah, Duchess of Marlborough, who had 
several important suits going on in the Court of Chan- 
cery respecting the trusts of her husband's will ; and 
desirous of stimulating his zeal in her favor, she resolved 
to make him a liberal donation, although not quite so 
splendid a one as that received from her by his rival 
Pitt. She sent him a general retainer, with a thousand 
guineas. Of these he returned her nine hundred and 
ninety-five, with an intimation that " the professional 
fee, with a general retainer, could neither be less nor 
more than five guineas." 

As might be expected, she was a very troublesome 
client, and she used to visit him herself at very unseason- 
able hours. On one occasion, when late at night he 
came home to his chambers, he found them almost 
blocked up by a splendid equipage ; footmen and pages, 
with torches in their hand, standing around ; and the 
Duchess seated in his consulting chair. Instead of mak- 
ing any apology, she thus addressed him: "Young 
man, if you mean to rise in the world, you must not sup 
out." 

Another night, when, after the conclusion of a very 
long trial in which he had succeeded, he was indulging 
in agreeable conversation with Pope and Bolingbroke, 
Sarah again called, and, having in vain expected his re- 
turn till past midnight, went away without seeing him. 
His clerk, giving him an account of this visit next 
morning, said to him, " I could not make out, sir, who 
she was, for she would not tell me her name ; but she 
swore so dreadfully that she must be a lady of quality." 

Mr. Murray's growing celebrity procured him a re- 
tainer at the bar of the House of Commons as counsel 
for the merchants who, because they were interrupted 
in their smuggling adventures to the Spanish colonies, 
petitioned for a redress of imaginary grievances, and 
were trying, without any sufficient ground, to bring 
about a war between the two countries. On this occa- 
sion " every resource of oratory was applied to exag- 
gerate the insults and cruelties of the Spaniards, and to 
brand as cowardice the minister's wise and honorable 
Jove of peace. It was asserted that the prisoners taken 



»38 REIGN OF GEORGE II. [1738. 

from English merchant vessels had been not merely 
plundered of their property, but tortured in their per- 
sons, immured in dungeons, or compelled to work in the 
Spanish dockyards with scanty and loathsome food, 
their legs cramped with irons, and their bodies overrun 
with vermin.'" To prove these outrages, Murray called 
as witnesses several captives and seamen; relying mainly 
on the famous Captain Jenkins, who stated that "a 
Spanish captain had torn off one of his ears, bidding him 
carry it to his King and tell his Majesty that if he were 
present he should be treated in the same manner;" and 
being asked what were his feelings when he found him- 
self in the hands of such barbarians, answered (perhaps 
on the suggestion of the counsel), " I recommended my 
soul to God, and my cause to my country." War was 
soon after proclaimed amidst public rejoicings, while 
Walpole prophesied truly, " they may ring their bells 
now ; before long they will be wringing their hands."" 

Murray, since his altered fortunes, could enter on a 
matrimonial negotiation with entire confidence. He 
proposed to the Lady Elizabeth Finch, a daughter of 
the Earl of Winchelsea ; and on the 20th of November, 
1738, he led her to the altar. Their union was most 
auspicious. They had no offspring, but they lived to- 
gether happily for near half a century ; and his passion 
for Chloe was only remembered by him to illustrate 
the maxim which he inculcated, that a first love may be 
succeeded by a second as pure and as ardent." Lady 
Mansfield, by the exemplary discharge of every domestic, 
social, and religious duty, made his home delightful till 
the loth of April, 1784, when he resigned her in the 
hope of being speedily reunited to her in a better world. 

The first four years after his marriage must have been 
the happiest portion of his existence. He was in the 
enviable situation of being at the head of the bar, with- 

' Lord Mahon, ii. 242. 

« Coxe's Memoirs of Walpole, i. 579, 618 ; Tindal, viii. 372; Commons' 
Journals, March 16, 1738. 

' Some of Lord Mansfield biographers have supposed that the Lady 
Elizabeth Fiiwh herself was the true Chloe, and that, she remaining true, 
her family relented on the improved prospects of her lover, but not only 
from the verses of Pope, but from other sources, it is quite certain that 
Chloe did wed the rich dullness of a Lincolnshire squire, and that the 
Lady Elizabeth succeeded her in the affections of her Strephon. 



i74i.] LORD MANSFIELD 



239 



out the anxiety or the envy which may be expected to 
attend the possession of office. Hope held out to him 
the most brilliant prospects of advancement, and, as yet, 
he thought there must be supreme felicity in gratified 
ambition. 

Both parties in the state were eager to enlist him in 
their ranks. At this time there were very few professed 
Tories, and still fewer avowed Jacobites. Politicians 
struggling for power, almost all coming within the 
general denomination of Whigs, were divided into the 
adherents and enemies of Sir Robert Walpole. Murray 
warily refused to join either the one class or the other. 
He had been counsel in a Chancery cause for the Duke 
of Newcastle, who, eager to secure the rising lawyer as 
partisan, wrote the following letter to Lord Chancellor 
Hardwicke : — 

" I cannot but think myself greatly indebted to Mr. 
Murray, who, from the great pains he has taken in the 
way of his profession, has singly procured the consent of 
all parties, without which I should not have been thor- 
oughly easy. I should be glad to make him any proper 
return ; and as promotions in the law are now stirring, 
might I submit it to your Lordship whether Mr. Murray 
might not be made one of the King's counsel ? His 
ability nobody will doubt, and I will be answerable he 
shall do nothing unbecoming that station, or that shall 
reflect upon those who shall recommend him to it. You 
know, my dear Lord, the reason I ask this favor of you, 
and for him ; and you must therefore know how greatly 
I shall be obliged to you if it can be granted, and that 
is all I shall say upon the occasion." 

The Duke, however, in his peculiar fashion, annexed 
certain conditions to this favor, which were rejected, and 
Murray continued to lead the bar in a stuff gown till he 
was made Solicitor General. At last the veteran min- 
ister, after having for twenty years distributed the pat- 
ronage of the Crown, was now so hard pressed that his 
fall was deemed inevitable ; but there was no concert 
among his heterogeneous opponents to form a govern- 
ment to succeed him, and there would have been no 
prudence in joining any section of them. Murray pre- 
tended to be guided by the sentiment of Pope, that " the 



2 40 REIGN OF GEORGE II. [1742. 

man who may have the good-will of all parties is guilty 
of folly if he becomes a partisan." However, when the 
crash was over, and Pulteney, to the surprise of all man- 
kind, declining to take office, the Duke of Newcastle, 
Pelham, and Hardwicke seemed firmly seated in power, 
the shrewd Scot did not hesitate to declare that b- 
th«ught they were entitled to the support of enlightened 
statesmen. His own father-in-law, the Earl of Winchel- 
sea, had become first Lord of the Admiralty, and was a 
member of the new Cabinet. His friendly opinion of 
Mr. Murray was made known in the proper quarter, and 
there was a warm desire to take him as soon aspossible 
into the service of the Crown. 

But he spurned the notion of any political appoint- 
ment, and there was a difficulty in bringing about a 
vacancy in the office of Attorney or Solicitor General, 
as neither of the present law officers could be unceremo- 
niously removed, and the existing occupants of the 
chiefships in Westminster Hall seemed hale and hearty. 
In the course of a few months Sir John Strange, the 
Solicitor General, whose health had failed him, was in- 
duced contentedly to resign, on a promise of being made 
Master of the Rolls. Mr. Murray was installed as his 
successor, and immediately after was returned to the 
House of Commons, in his stead, for Boroughbridge, 
one of the many seats in the gift of the Duke of New- 
castle." 

' At the same time he was elected a Bencher of Lincoln's Inn : — 

" At a Council held the 29th day of November, 1742. 

"Ordered, — That the Hon. William Murray, Esq., His Majesty's Solicitor 
Genei al, be invited to the bench of this Society ; and that Mr. Attorney 
Geneial, and Mr. Browne, two of the Masters of the Bench, are desired to 
attend him with this order, and report his answer to the next Council ; and 
if the said Mr. Murray do accept of this invitation, he is, according to the 
rules of this Society, to pay all his arrears and duties to the Treasurer of this 
Society before he be published to the Bench." 

" At a Council held the 15th day of December, 1742. 

" Upon the report of Mr. Attorney General, who, with Mr. Browne, was, 
by order of the last Council, desired to attend the Hon. William Murray, 
Esq., His Majesty's Solicitor General, with an invitation to the Bench 
that he, together with Mr. Browne, had attended the said Mr. Murray, 
who had accepted of the said invitation, — it is Ordered, that the said 
Mr. Murray be called to be a Bencher of this Society, and that he be 
published at the next Exercise in the Hall, be having paid all his 
arrears and duties to this Society." 

He was Treasurer the following year. 



1 742-] LORD MANSFIELD. 241 

The very honorable feelings which filled his mind on 
his promotion are well expressed in the following letter 
from him to Mr. Grant, an eminent advocate at the 
Scotch bar, who had lately been deprived of the office 
of Lord Advocate, but was afterwards made a Judge by 
the title of Lord Prestongrange : — 

" Dear Sir, — Give me leave to acknowledge your very 
obliging letter ; your partiality flatters me, extremely ; 
because I am persuaded it proceeds from good will ; and 
there is nothing I covet so much as the good will of 
those I value and esteem. The office I have accepted 
came unasked, and recommended by mafly circum- 
stances to make it agreeable, else I cou'd have liked 
very well to continue as I was ; my ambition is not so 
much to aspire to high things, as to act my part, what- 
ever it is, as well as I can. In my way of thinking, I 
cannot condole with you upon the loss of that office to 
which you did honor while you filled it, tho' I was 
heartily concerned when I heard of it ; I cou'd condole 
with those who took it from you ; the enjoyment of it 
cou'd not add much to your figure or character, the loss 
of it can take nothing from either ; and I am convinced 
that in making the change no part of the motive was 
personal to you. It is to God and yourself that you 
owe being at the head of your profession, which, in my 
opinion, is the highest object of ambition. This situa- 
tion no power can give or take away. That you may 
long enjoy it in spirits and health is the sincere wish of 
" Dear sir, 

" Your most ob : hu : servt. 
"W. Murray. 

"Lincoln's Inn, i8th Dec. 1742." 

Before we see the new Solicitor tossed about on the 
stormy ocean of politics, on the margin of which he now 
stood, let us try to catch a glimpse of him in private 
life. He had taken a handsome house in Lincoln's Inn 
Fields, then the haunt not only of prosperous lawyers 
but of ministers of state.' Here he received his pro- 
fessional friends, whom he entertained with elegant 

' The Duke of Newcastle's houie was at the north-west comer, Best 
to Queen Street. 

Ill — 16. 



242 REIGN OF GEORGE II. 

hospitality and genuine kindness. One of these whom 
he most loved was Mr. Booth, afterwards celebrated as 
a conveyancer, but at this time very much disheartened 
by the small success he met with in the department of 
the profession which he had chosen. The following 
letter; written to cheer and encourage him, shows Mur- 
nay to have had a warmth of heart for which he has not 
had sufficient credit : — 

" My dear Friend, — I received yours last night. I 
cannot but applaud the protection you give a sister, 
whom I know you love tenderly : yet it seems a little 
rash to carry your benevolence so far as to dry up the 
source of all future generosity ; and I am sure it is 
greatly against the interest of every one, who has the 
least dependence upon you, that you should do any- 
thing which makes it all difficult for you to persevere in 
a way where you must at last succeed. Of this I have 
no doubt ; and, therefore, it is superiluous to add my 
advice for your coming to town immediately, as it 
would be to tell you that I omit no opportunity of 
mentioning your name, and promoting your interest. 
You cannot fail but by staying in the country, and 
suffering people who have not half your merit to step 
in before you. With regard to everything you say of 
Mr. Pigot, we will talk more at large hereafter ; I as 
little think he will bring you into his business while he 
lives as that you can be kept out of a great part of it 
when he' dies. I am at present consulted upon a devise- 
settlement of his, whereby a great estate is left to a 
noble Roman Catholic family — which I am very clear is 
good for nothing. Can you contrive a way by which an 
estate may be left to a Papist ? Though I have no more 
doubt of the case put to me than whether the sun shines 
at noon, I told the gentleman who consulted me I would 
willingly stay to talk with a Roman Catholic conveyancer, 
whom I expected soon in town, and named you to 
him. 

" I own I am desirous you should come to town ; and 
be assured the best service you can do your friends is to 
put yourself in a way to serve them effectually. As to 
any present occasions you have, you know where to 
command when I have a shilling. Nil mihi rescribas. 



LORD MANSFIELD. 243 

attamen ipse vent. I am, I do assure you, with great 
cordiality and esteem, 

" Dear Booth, 
" Your affectionate friend and faithful servant 

" W. Murray.' 

To show his amiable disposition and recollection of 
favors received, I may here introduce two letters written 
by him to Lord Milton, a Judge of the Court of Session 
in Scotland, from whom he had received much kindness 
when a boy : — 

" My dear Lord, — To come at once to the business of 
my letter, and without a preface. I have lately been 
engaged before my Lord Chancellor in a question for 
the Dean and Chapter of Christ Church College in Oxford, 
of which your Lordship knows I was, till very lately, a 
member. It was a point about which they were very 
anxious ; and I happened to speak in it so much to their 
satisfaction that they have thought themselves obliged to 
make a particular acknowledgment of it, and the manner 
in which they have done it is very well judged ; they 
have offered me the nomination of a student, who is 
there the same as a fellow of another college, There go 
four ev'ry year from Westminster School, and the other 
vacancies are filled by the Dean and Canons. The thing 
is extremely creditable ; and they may be upon a foot 
with any gentleman of the place at a much less expense. 
From the College they have chambers commons and 
about ;^20 a year, which increases according to their 
standing. There are other advantages afterwards to 
those who reside there and take orders. 

" I did not refuse the offer made me of this nominatin ; 
and immediately resolved to propose it to my Lady 
Milton and you. My nephews are too young ; and 
Ijesides, I intend, if they are educated in this^ country, 
that they shall go thro' Westminster College. I find 
j'our Lordship has a son at Winchester School about 
sixteen years of age, but I fear he is your eldest son, and 
therefore it will not be of the same service to him that 
it would be to a younger son. I am told that the next 
you do not intend for a learned profession, but for the 
army. However, it may be worth your while to consider 
whether you will accept of it for your eldest son ; if you 



J44 REIGN OF GEORGE II. 

intend to breed him to a profession in this country, and 
to give him an university education. If you propose to 
send him to the University here for a year or two only, 
and then abroad to study the civil law, and travel, and 
so home, this certainly don't deserve to be thought of, 
and is by no means advisable ; and I suspect this so 
much to be your plan, and it is a very reasonable one, 
that when I found upon inquiry you had no younger 
son whom this would suit, I doubted whether I shou'd 
propose this to you at all ; but a friend of yours, from 
whom I learnt the state of your family, desired I wou'd 
that you might judge for yourself. There is no haste in 
determining, because it will be a considerable time before 
the place falls. I desire my compliments to my Lady. 
I need not tell you the pleasure it wou'd give me to be 
serviceable to your family in any respect. This is the 
first thing in my power that has offered, and, whether 
it suits or not, I have the pleasure of giving this small 
mark that I am, my Lord, 

" Your Lop's most obliged and obedt. hu : servt 

"W. Murray. 
"Lincoln's Inn, 2d Feb." (1737-8) 

" My de ar L ord, — The accounts I have lately heard 
of your Lops health have giv'n me great pain ; and I 
have often been tempted to write to Lady Milton to 
inquire after you, but I was afraid it might be too tender 
a subject to apply to her upon. I called yesterday upon 
L* Isla to talk with him about your son's education. I 
am glad to find he thinks the offer which fortune put in 
niy power to make you last year is so advantagious to 
him as not to leave room for deliberation ; tho' he has 
some prejudices, and perhaps too well founded, to many 
things in our Universitys ; I know the good and the 
bad of them very well ; and upon the whole am very 
clear that you cannot dispose of him in any other way 
so well, and it will interfere with no scheme which you 
can have hereafter. I am too much pressed at present to 
give you my reason, and I only write this to tell you 
that my L* and I agreed he shou'd go to Christ Church 
in Oxford. The time when, and everything else in 
relation to fixing him there, I will take the trouble of 



LORD MANSFIELD. 245 

directing, and likewise recommend him to proper com- 
pany, and put him under the best care I can. I desire 
my compliments to my lady, and am with great truth, 
" Your Lop's most ob : hu : servt 

" W. Murray. 

" Lincoln's Inn, 11 Jan. 1738-9. 

" I don't at all know what progress he has made at 
school, but he seems to me a very pretty youth." 

The new Solicitor General and M. P. found a mortify- 
ing difficulty in keeping up the intercourse he wished 
with his literary associates ; and Pope, when publishing 
a new edition of the DUNCIAD, introduced him (although 
with respect and tenderness) among those who from their 
classical attainments and their genius might have gained 
high intellectual distinction, but who had sunk into law- 
yers and politicians : — 

•' We ply the memory, we load the brain, 
Bind rebel wit, and double chain on chain ; 
Confine the thought to exercise the breath, 
And keep them in the pale of words till death. 
Whate'er the talents, or howe'er design'd. 
We hang one jingling padlock on the mind: 
A poet the first day he dips his quill ; 
And what the last ? — a very poet still. 
Pity ! the charm works only in our wall, 
Lost — too soon lost — in yonder house or hall. 
There truant Wyndham ev'ry muse gave o'er ; 
There Talbot sank, and was a wit no more ! 
How sweet an Ovid, Murray, was our boast I ' 
How many Martials were in Pultney lost !" 

Notwithstanding such lamentations, the intimacy be- 
tween the two illustrious friends continued without 
abatement. Pope was often in the habit of spending 
his winter evenings in the library of Murray's house in 
Lincoln's Inn Fields. 

It is related that on one occasion the rising lawyer, 
being called away to a consultation, put into the poet's 

' From this compliment, I suspect that the beauty of Chloe or some 
other charmer had been celebrated by Murray in verses which have not 
reached us. 

It is rather suprising that Murray's name is not introduced with Wynd- 
ham's, St. John's, and Marchmont's, in the verses on Pope's Grotto at 
Tickenham ; but perhaps it did not aptly fall into any couplet. On 
such considerations do tlie praises and censures bestowed by poets some- 
times depend. 



S46 LORD MANSFIELD. 

hand a volume of Latin Epitaphs, lately, published by 
Dr. Friend, head master of Westminster, saying that 
they had been much read and admired. Pope, who, like 
other great men, felt unnecessary jealousy of a supposed 
rival, was alarmed lest his own fame in epitaph-writing, 
on which he particularly valued himself, should be dim- 
med" and on Murray's return showed himthe following 
epigram : — 

"Friend! for your epitaphs I'm grieved: 
Where still so much is said, 
One-half will never be believed, 
The other never read." 

The old Westminster, although a little hurt that his 
preceptor should be so slighted, acknowledged that the 
lines were smart, and, with permission, took a copy of 
them. But next night. Pope, having produced a Latin 
epitaph of his own composition, which he maintained 
to be equal to any of Friend's, Murray, detecting a false 
quantity in it, threw it in the fire, saying that " the finest 
of English poets, and he who had most embellished his 
own language, ought to write in no other." The dis- 
tinction conferred on a young lawyer by such an inti- 
macy is more to be envied than Chief Justiceships and 
Earldoms. 

Pope, a few days before his death, when much debili- 
tated in body, was, at his own desire, carried from Twick- 
enham to dine with Murray in Lincoln's Inn Fields. 
The only other guests invited were Bolingbroke and 
Warburton. O for a Boswell to have given us their con- 
versation! But, perhaps, it is better that their confi- 
dence has not been betrayed, for, amidst the gratifica- 
tion arising from their lively sallies, we might have 
found Bolingbroke scoffing at religion, — Warburton ir- 
reverently anathematizing all who differed with him on 
questions of criticism, — Pope vindicating himself from 
the charge of Roman Catholic bigotry by denying Di- 
vine revelation, — and Murray softening the miscon- 
duct of those who had been, or were in the service of 
the Pretender, by admitting that he himself had had a 
strong hankering after the doctrine of the divine right 
of kings. 

Some expected that Murray, having been treated by 



LORD MANSFIELD. 247 

Pope as a son, would have been named his heir ; but he 
was himself amply satisfied with the proof of the con- 
tinued regard he experienced in being appointed his ex- 
ecutor, and being legatee of a marble bust of Homer by 
Bernini, and another of Sir Isaac Newton by Guelfi. He 
had received before, what he valued beyond all his pos- 
sessions, a portrait of Betterton, the actor, drawn by 
Pope himself, who, it is well known, thought he was 
born to excel by the pencil as well as by the pen. 




CHAPTER XXXII. 

CONTINUATION OF THE LIFE OE LORD MANSFIELD TILl 
HE WAS MADE ATTORNEY GENERAL. 

IT has often happened that a lawyer, with great rep- 
utation at the bar, has lamentably failed on coming 
into the House of Commons ; but Murray, as a par- 
liamentary debater, was still more applauded than when 
pleading as an advocate. Now he reaped the reward of 
long years of study, by which he cultivated and per- 
fected the high qualifications for oratory which he had 
received from nature. The first time he opened his 
mouth in the House of Commons he seems to have had 
the most brilliant success ; and, during the fourteen years 
he remained a member of that assembly, as often as he 
mixed in the debate he was listened to with favor. 

His chief antagonist was William Pitt, who had en- 
tered parliament two years before him, as member for 
Old Sarum, and had made himself most formidable by 
an uncompromising hostility to all the measures of the 
Government, and by an energy of declamation and a 
power of invective hitherto unexampled in the annals 
of English eloquence. The great patriot was already 
compared to a mighty torrent which, with irresistible 
fury, carries away before it every obstacle that it en- 
counters, spreading consternation and ruin through the 
country which it overwhelms. 

Murray, unless on some very rare occasions, was found 
to be his match. The mellifluous tones, — the conciliatory 
manner, — the elegant action, — the lucid reasoning, — the 
varied stores of knowledge, — the polished diction, — the 
alternate appeals to the understanding and the affections, 
— the constant self-control, — which distinguished the 
new aspirant, divided the suffrages of the public. Evei> 
the worshipers of Pitt admitted that Murray was justly 



1 743- J LORD RAYMOND. 



■ 249: 



entitled to the complimentary quotation from Denham, 
which his friends applied to him, — 

" Though deep, yet clear ; though gentle, yet not dull ; 
Strong, without rage ; without o'erflowing, full."' 

The subject of agitation then was the taking of 16,000 
Hanoverian troops into British pay. Pitt, heading the 
discontented Whigs, and backed by the Tories and 
Jacobites, denounced this act as illegal, unconstitutional, 
a sacrifice of British to Electoral interests, and a pre- 
clude to the introduction of despotism into this country, 
— and he brought forward a motion for an address to 
the Crown, praying that these troops should be dis- 
missed. 

The duty of the Solicitor General of that day in the 
House of Commons was not confined to answering a 
legal question, or introducing a bill to reform the prac- 
tice of the courts. The brunt of this debate chiefly fell 
upon him. From defective reporting, we can form a 
very inadequate notion of his speech ; but I will give a 
few extracts from it. Thus he began : — 

" Sir, the motion now under our consideration is of 
such a new and extraordinary nature, and is such a 
direct attack on the just prerogative of the Crown, that 
I should think myself very little deserving of the honor 
which his Majesty has been pleased to confer upon me 
if I did not rise to oppose it. There are certain powers 
vested in the King, as there are certain privileges be- 
longing to the people, and an infringement of either 
would lead to the overthrow of our happy constitution. 
As the guardians of the liberties of the people, we are 
bound to respect the royal prerogative. But if there be 
anything certain it is this, — that to the King alone it 
belongs not only to declare war, but to determine how 
the war, when declared, shall be carried on. He is to 
direct what forces are to be raised ; when armies are to 
march ; when squadrons are to sail ; when his com- 
manders are to act, and when they are to keep upon the 

' Perhaps the reader may be more amused by the description of his elo- 
quence by his principal biographer, — " He was perspicuous without con- 
straint, mellijluous without exuberance, and convincing without ostentation " 
— (HoUiday, p. 54), — although one does not see at first sight how the vice 
of which he is acquitted, is an excess of the good quality for which he i» 
praised. 



aSo REIGN OF GEORGE II. [1743 — 

defensive. If this motion were carried, I should expect 
to see a venerable member moving an address that a 
general engagement shall be immediately ordered in 
Flanders, although the mover has never been out of 
England, ' nor the division of a battle knows more than 
a spinster.'" He then takes an enlarged view of the 
state of Europe, and particularly of the affairs of the 
Queen of Hungary ; and, having shown that the most ef- 
fectual mode of assisting her, and of baffling the attempts 
of France, was to send an army into Flanders, thus con- 
tinues : — " On every side the most happy effects have 
been produced by the method his Majesty has chosen 
for assisting the Queen of Hungary. I hope it will not 
be said that we ought to assist her with our own troops 
alone. To raise by recruiting at home the army which 
would be necessary, must be injurious to our industry 
and injurious to our constitution. We must therefore 
have foreign troops in our pay, and where shall we find 
any to be preferred to the Hanoverians ?" He next 
goes on to vindicate his Majesty's countrymen from the 
false charges of cowardice and insubordination, which, 
to spite him, were circulated against them, and to- 
show that no improper partiality had ever been shown 
for them in preference to British troops. Thus he 
concludes : — " I will not say, sir, that upon no oc- 
casion would this House interfere with its advice 
as to the exercise of the prerogatives of the Crown. 
If wicked or incapable ministers were bringing 
disgrace on the British arms, degrading the na- 
tional honor, and hazarding the national safety, we 
might be called upon to advise the King to change his 
measures and his advisers. But our allies have Jjeen 
effectually protected, and the interests of England, in 
every part of the world, have been vindicated. It is in- 
sinuated, indeed, that all our measures are secretly cal- 
culated for the benefit of the Electorate of Hanover. 
This is an insinuation of a most dangerous nature, and 
it ought not to be resorted to for mere party purposes, 
because it tends not only to wean the affections of the 
people from the sovereign on the throne, but from the 
Protestant succession in the Hanover line, and to bring 
about a counter-revolution which would be fatal to re- 



*743.] LORD MANSFIELD. 251 

ligion and liberty. Whether the republican faction, 01 
Jacobitish faction, which are now united, shall prevail 
when the split comes, destruction alike awaits constitu- 
tional freedom. What ground is there for the charge? 
I do not pretend to be in the secrets of the Cabinet, and 
I am unable to dive into the hidden recesses of the 
human mind to analyze the true motives of action ; but 
when the measures of the Government are wisely cal- 
culated to promote the dignity and prosperity of Eng- 
land, and have actually produced the happy results 
which might have been expected from them, why should 
you say that their hidden and sole object is to enrich 
Hanover and to add a few patches to its territory?" 

The motion was negatived by a majority of 231 to 
181, and Murray became a special favorite with George 
II., who highly valued his services, — although he some- 
times believed him to be a convert from Jacobitism, and 
sometimes suspected his sincerity.' 

The office of Attorney General was held by Sir Dudley 
Ryder, a sensible man and a good lawyer, but unfit for 
anything beyond the limits of professional duty ; while 
Mr. Solicitor General Murray might henceforth be con- 
sidered the Government leader in the House of Commons. 
For this office he had the very convenient privilege of 
professing, when it suited his purpose, entire ignorance 
of ministerial secrets. Without being formally a member 
of the Cabinet, it is quite clear that he was a party to 
its most important deliberations and decisions. Yet he 
would thus begin a speech on the policy of entering 
a treaty with a continental state to prosecute the war : — 
" The post in which I have the honor to serve his 
Majesty has no concern with foreign affairs ; and as I 
am not so unreasonable as to expect, much less desire, 
that ministers should communicate to me those secrets 
which the duty of their office requires them to conceal, 
I can know nothing of foreign affairs beyond what I 
learn from the public gazettes or papers laid before this 
House and accessible to every member. I know enough, 
nevertheless, to enable me confidently to oppose this 
motion, and easily to show its inexpediency." He 
then took a masterly view of the diplomatic relations of 

' 13 Pari. Hist. 143, 'i\b-^^^. 



252 REIGN OF GEORGE II. Li743- 

this country with the different courts of Europe, speak- 
ing hypothetically where direct assertion was incom- 
modious.' 

Nay, the Government actually depended upon him 
for vindicating the manner in which the war was con- 
ducted by England and her allies, and for meeting such 
questions as whether the allied powers could best make 
an impression on France by mustering their forces in 
Flanders or on the Rhine." But these discussions, which, 
while they were going on, were declared, and perhaps 
believed, to be the most important which had ever 
occurred in the annals of Great Britain, led to no 
memorable result, and havfe now lost all their interest. 

The connection between England and the electorate of 
Hanover, which was the great topic of patriotic de- 
clamation and ground of popular discontent, has 
fortunately for ever ceased by the auspicious operation 
of the law of descent. The supposed grievances arising 
from this connection were powerfully urged by Pitt and 
Littleton, who at last actually brought forward a reso- 
lution "that no prince holding foreign dominions should 
be qualified to fill the throne of Great Britain ; " inti- 
mating that Hanover might be transferred to a younger 
branch of the House of Brunswick, — if the King, from 
his extreme and notorious partiality for it, should not 
choose it for himself. 

Murray, in answer, dwelt on the impolicy of proposing. 
a measure which we had no means of carrying ; for if 
it met the approbation of the Parliament of England, it 
might be rejected by the Diet of the Germanic Empire. 
He conjured all lovers of constitutional freedom to rest 
satisfied with the Act of Settlement, which contemplated 
the possession of foreign dominions by the prince called 
to the British throne, and, recognizing this arrangement, 
anxiously and effectually guarded against all the incon- 
veniences which it might by possibility occasion. He 
then tried to show that the complaints made on this 
subject by Tory fox-hunters and discontented aspirants 
to place, were to be ascribed to prejudice or calumny. 
Pitt thus began his reply:— "Not all the sophistry of 
the honorable and learned gentleman shall make me 
> 13 Earl. Hist. 143, 246, 384, 407. « Ibid. 396. 



174S-J LORD MANSFIELD. 



253 



recede from the true point in debate, which is not at all 
affected by any one of his arguments." ' But we shall 
find passages of arms between these champions more 
worthy of our regard. 

We approach the rebellion of 1745, which ever must be 
interesting to the inhabitants of this island. An event 
had very nearly taken place which would have entirely 
changed our destiny, and might have had a material 
influence upon the history of Europe — the restoration of 
the Stuarts to the throne of their ancestors. 

Murray must have viewed the struggle with divided 
feelings. He had cast in his lot with the new dynasty ; 
but his second brother, whom he dearly loved, had been 
twenty years in the service of the Pretender, had been 
created by him Earl of Dunbar, and was supposed to be 
his destined prime minister. Whether or not Mr. 
Solicitor himself had ever drunk on his knees to " the 
King over the water," all his early associations must 
have led him to doubt the title of the reigning family ; 
and, if the will of the people were to prevail, he saw the 
•church and landed aristocracy in favor of a restoration, 
while the middle and lower orders testified perfect in- 
difference as to the success of the old dynasty or the 
new.* 

Whichever way he might be drawn by this inclination, 
he was governed by a sense of duty ; and, and, remem- 
bering the oaths he had sworn, he strictly preserved his 
allegiance to King George, and used his best endeavors 
to frustrate the hopes of the Jacobites. 

A message being brought down from the King, an- 
nouncing the meditated attempt by Prince Charles 
Edward, the Solicitor General zealously supported the 
bill for suspending the Habeas Corpus Act, against 
George Grenville, who, though a sober-minded man, and 
well affected to the Protestant succession, was so far 
blinded by faction as to assert that " the threatened 
invasion was a mere contrivance of ministers to prolong 
their own rule." Murray made a very temperate and 
effective speech, showing that, since the Revolution, the 
same power had been asked by successive governments 

• 13 Pari. Hist. 467-474. 

* According to old Horace Walpole, they cried, " Fight dog, fight bear.'' 



254 



REIGN OF GEORGE II. [1746 



nine times over, and that on none of those occasions did 
there exist such a strong necessity for empowering the 
government to arrest and detain those who were well 
known to be guilty of treason, although there might not 
be legal evidence upon which they could be brought to 
an immediate trial." 

It would have been curious to read a diary sincerely 
written by hirn, from the time when news arrived of the 
landing of the young Pretender in Moidart till news 
arrived of his flight after the battle of CuUoden. 
Murray's correspondence with his mother during the 
same period would be still more curious ; for the good 
old lady, who never in all her life prayed for King 
George, made no secret of her good wishes for King 
James, and was said actually to have assisted the rebels 
with provisions as they passed through Perth. But no 
such stores of private information are open to us. Even 
in public records Murray's name is not again mentioned 
till the Georgian cause had completely triumphed ; and 
the " rebel Lords," — who, if they had succeeded in their 
enterprise, being made Dukes and Knights of the Garter, 
would have been celebrated for their loyalty in all suc- 
ceeding ages, — were to be prosecuted for joining in an 
" unnatural rebellion ; " were to receive sentence to be 
hanged, beheaded, and quartered ; and were to die with 
the reflection that their estates and titles were forfeited, 
and that their children were reduced to beggary and 
disgrace. 

It must have been a painful task for Murray to take 
an active part in these prosecutions, for the prisoners were 
connected with his family by blood or alliance ; but he 
did his duty with firmness and moderation, neither seek- 
ing to blunt the edge of the law out of favor to the ac- 
cused, or to make it cut with undue sharpness that he 
might avoid the charge of partiality. 

Lords Kilmarmock, Cromarty and Balmerino being 
tried before the House of Peers and a Lord High Stew- 
ard, on bills of indictment against them found by an 
English grand jury for overt acts of treason committed 
in the siege of Carlisle, he appeared against them as one 
of the counsel for the Crown. With the first two he had 

■ U Pari Hist. 671. 



1746.] LORD MANSFIELD. 



255 



little trouble, for they both pleaded Guilty and prayed 
for mercy. Lord Balmerino pleaded NOT Guilty, and 
relied upon two objections: — i. "That in the indict- 
ment he was designated 'John, Lord Balmerino, late 
of the city of Carlisle, in the county of Cumberland,' 
whereas his true title was ' John, Lord Balmerino, of 
Balmerino, in the county of Fife ;' "' and 2. " That he 
was indicted for the taking of his Majesty's city of Car- 
lisle on the nth of November, in the year of our Lord 
1745 ; whereas he could prove that during the whole of 
that day he was at least twenty miles off, and the city of 
Carlisle did not surrender till two days after." Lloyd 
and Skinner, King's Sergeants, and Ryder, the Attorney 
General, argued at great length against these objections, 
showing that the words " late of Carlisle" did not mean 
to give the prisoner's title of dignity, but were only to 
satisfy a form of law, as denoting the place in which he 
had been ; and that, by the rules of criminal procedure 
in England, though very strict upon some points, the 
offense might be alleged to have been committed on one 
day and proved by the evidence to have been committed 
on any other. The objections being still seemingly re- 
lied upon, the Solicitor General rose in his turn ; but no 
sooner had he uttered the introductory words " My 
Lords," than Lord Balmerino, interposing, observed that 
" he was satisfied," and asked their Lordships' pardon 
for taking up so much of their time : — 

Solicitor General : " My Lords, I was going to have 
said I did not apprehend it necessary for me to speak 
from any difficulty in the objections : but as the answer 
to them depended not on natural but on legal reasoning, 
and established forms, I would, for his satisfaction, as he 
has not the assistance of counsel, have said a word or 
two, not merely to prove the rules we contend for to be 
settled by the uniform authority of all our books and 
many adjudged cases, but to have explained why they 
have been so settled, that the prisoner may be described 
in conformity to the statute of additions, as laie of any 
place where he has recently been, although he is not 
domiciled there ; and that the treason must be laid in 
the indictment to have been committed on a particular 
day, although proof of its having been committed on 



2S6 REIGN OF GEORGE II. [1747. 

another day is sufficient. As he has declared himself 
satisfied, there is no occasion to say more." 

Mr. Solicitor's intentions were praiseworthy : but it 
was rather lucky for him that he was released from the 
task he had undertaken, as these rules of law, however 
well established, certainly are very absurd and inexpli- 
cable ; and he himself used to laugh at the ridiculous 
length to which lawyers were in the habit of carrying 
Coke's favorite maxim, " Lex plus laudatur, quando ra- 
tione probatur." 

The fate of these noblemen excited deep commisera- 
tion, notwithstanding the admission which all who rea- 
soned coolly were obliged to make, that, for the stability 
of government and the peace of society, unsuccessful 
rebellion must be treated as a capital crime ; and when 
Balmerino, on the scaffold, as a response to the prayer 
'' God bless King George!" exclaimed " God bless King 
James !" he was regarded with reverence as a martyr. 

In the next prosecution in which Murray was engaged, 
whatever private compunction he might have felt, he 
had not to encounter any merciful prejudices, and he was 
only an instrument in directing public vengeance against 
a man who, after a long career of treachery and rapine, 
wished to save the miserable remnant of his days by the 
sacrifice of his own son : — 

" But Lovat's fate exultingly we view ; 
True to no king, to no religion true : 
No Tory pities, tliinking wliat he was ; 
No Whig compassions, for he left the cause : 
The brave regret not, for he was not brave ; 
The honest mourn not, knowing him a knave.'' 

In this case Murray appeared not as a law officer of 
the Crown, but as a member of the House of Commons. 
The wily old chieftain, although, when he thought Prince 
Charles was about to succeed, he ordered his son and his 
clan to join his standard, had himself continued shut up 
in his castle in Inverness-shire. Therefore he could not 
be proceeded against by the presentment of an English 
grand jury ; and, as the law then stood, he could only be 
brought to trial by impeachment. The Solicitor Gen- 
eral was appointed one of the managers to conduct the 
prosecution at the bar of the House of Lords in the 



1 747 -J LORD MANSFIELD 257 

name of all the commons of Great Britain, and it was 
allowed on all hands that he performed this delicate 
duty with ability and good taste. 

On the sixth day of the trial, being called upon to re- 
ply, he began by alluding to the disadvantage under 
which the octogenarian Peer seemed to labor from being 
obliged to rely upon his own advocacy ; but said, — 

'^ Under the peculiar circumstances of this case, the 
assignment of counsel to the prisoner would rather have 
aided the prosecution. I speak it feelingly ; I would 
rather have been opposed to the ablest advocate than 
do what is now required of me as a faithful represent- 
ative of the people. I am persuaded, my Lords, that 
compassion, inseparable from noble minds, has been in- 
genious to suggest to you doubts and objections in favor 
of one standing in that place, who certainly labors under 
some infirmities, and is allowed to defend himself by no 
other tongue than his own. If scruples have arisen in 
the minds of your Lordships, they will gain strength 
from that consideration, and the honest prejudice in his 
favor may be of more service than the most brilliant elo- 
quence. But what can avail against acts of treason so 
irrefragably proved ? against the confessions and the 
boasts of the prisoner himself when he thought that the 
cause in which he had engaged was to be triumphant?" 

Mr. Solicitor then in a most lucid manner analyzed 
the charges against the prisoner, and the proofs by 
which they were substantiated, — abstaining from all 
violence of declamation, but giving full effect to the 
salient points of the case, and, in a seemingly simple 
narration of facts, making the prisoner's duplicity and 
violence rouse a strong spirit of indignation in the breast 
of the hearers. He thus delicately touched upon the 
insinuation that the march of the Erasers with the Pre- 
tender was to be ascribed solely to the " Master of 
Lovat :"— 

" He laments the absence of his witnesses ; but there 
is no calling witnesses without facts ; there is no making 
a defense without innocence ; there is no answering evi- 
dence which is true. I will do him the justice to believe 
that, if he could with truth, he would not now throw the 
whole blame upon the 'stiff-necked, headstrong dis- 
m — 17- 



258 REIGN OF GEORGE II. [1747, 

obedience of his son.' That unhappy boy is already at- 
tainted, and is now actually in custody. Though he 
might have been made the scape-goat if he were out of 
reach ; yet, in his present situation, I am sure the noble 
lord would not seek to save his own life by representing 
his son as the real criminal." 

At the conclusion of this speech, Lord Talbot, the 
son of Lord Chancellor Talbot, said, " My Lords, the 
abilities of the learned manager, who just now spoke, 
never appeared with greater splendor than at this very 
hour, when his candor and humanity have been so con- 
spicuous that I hope one day to see him add lustre to 
the first civil employment in this kingdom." 

The House then adjourned for a few minutes, that the 
Peers might take some refreshment. Lord Lovat seized 
this opportunity of introducing himself to the Solicitor 
General, who stood near him at the bar; and, having 
complimented him on his able speech, added — " But I 
do not know what the good lady your mother will say 
to it, for she was very kind to my clan as we marched 
through Perth to join the Pretender."' 

The House being resumed, the prisoner made a very 
irregular proposal, that the trial should then be post- 
poned to enable him to bring witnesses from Scotland, — 
but this was strenuously opposed by the Solicitor Gen- 
eral and rejected. All the Peers present joined in a 
unanimous verdict of Guilty. 

When the prisoner was asked if he could show any 

' Horace Walpole most grossly misrepresents this anecdote, by trans- 
ferring it to the trial of Lord Balmerino, and by supposing that the Solicitor 
General, who had excited suspicion of his loyalty by his courtesy to all the 
rebels, had brutally insulted them. " While the Lords were withdrawn, the 
Solicitor General Murray (brother of the Pretender's minister) officiously 
and insolently went up to Lord Balmerino and asked him ' how he could 
give the Lords so much trouble ?' Balmerino asked the bystanders who 
this person was ? and being told, he said, ' Oh, Mr. Murray, I am extremely 
glad to see you : I have been with several of your relations ; the good lady, 
your mother, was of great use to us at Perth.' " — Letter to Sir H. Mann. 

Lovat's tone of jocularity was preserved during the whole course of the 
trial. Old Sir Edward Fawkener, who had recently married a girl from a 
boarding-school, having proved, in answer to some questions from the 
Solicitor General, that the prisoner had confessed the part he had taken in 
the rebellion, he exclaimed, " I have nothing to ask by way of cross-exam- 
ination ; — only my service to Sir Edward, and I wish him joy of his 

YOUNG BRIDK." 



1 747-] LORD MANSFIELD. 



259 



cause why sentence of death should not be passed upon 
him, he said — 

" My Lords, — I am very sorry I gave your Lordships 
so much trouble in my trial, and I give you a million of 
thanks for your being so good in your patience and at- 
tendance while it lasted. I thought myself much loaded 
by one Mr. Murray,' who, your Lordships know, was the 
bitterest witness there was against me. I have since 
suffered by another Mr. Murray, who, I must say with 
pleasure, is an honor to his country, and whose elo- 
quence and learning are much beyond what is to be ex- 
pressed by an ignorant man like me. I heard him with 
pleasure, though it was against me. I have the honor 
to be his relation, though perhaps he neither knows it 
nor values it. I wish that his being born in the north 
may not hinder him from the preferment that his merit 
entitles him to. Till that gentleman spoke, your Lord- 
ships were inclined to grant my earnest request, and 
allow me further time to bring up witnesses to prove my 
innocence ; but, it seems, that has been overruled. All 
now that I have to say is a little in vindication of my 
own character." 

Having spoken at great length to justify himself from 
the charges of dishonorable conduct brought against 
him, he concluded with the following unexpected and 
good-humored observation : " I beg your Lordships' 
pardon for this long and rude discourse. I had great 
need of my cousin Murray's eloquence for half an hour, 
and then it would have been more agreeable." 

The old Peer, though really very worthless, acted his 
part so well at the final close of his career, as almost to 
make us forget his crimes, and to persuade us that he 
was a true patriot. In the night before his execution, 
after expressing deep abhorrence of Murray of Brough- 
ton, the Pretender's secretary, who had turned King's 
evidence, he again spoke kindly of his cousin William 
Murray, — saying, " Mr. Solicitor is a great man, and he 
will meet with high promotion if he is not too far 
north" Next morning he laid his head upon the block, 
exclaiming, " Dulce et decorum est pro patril mori.'" 

' Murray of Broughton, who had been Secretary to the Pretender, and 
turned King's-evidence. 

» 18 St. Tr, 530-863. 



26o REIGN OF GEORGE II. [1747 

After these state trials were over, a period of internal 
tranquillity followed ; and Murray, while he remained at 
the bar, had no opportunity of increasing his forensic 
reputation. He was easily the first counsel in the Court 
of Chancery ; but in those days Equity proceedings at- 
tracted no degree of public notice. There were leveled 
against him various scurrilous articles in the newspapers, 
written by disappointed and envious rivals, represent- 
ing him as an intruder in England, and containing many 
illiberal reflections on his native country. In his de- 
fense a pamphlet was published, entitled " The 
Thistle," with the motto " Nemo me impune laces- 
sit." This was imputed to himself, but must have been 
written by some very indiscreet friend, as may be seen 
from the following quotation on the state of the Eng- 
lish bar : — 

" Had it not been for the few Scotch there, particu- 
larly two gentlemen of that nation [Mr. Murray and Mr. 
Hume Campbell], who support oratory as far as the 
state jargon and limited pedantry of the bar will permit, 
standers-by would bepuzzled to know what was intended 
by the pleadings there. But these gentlemen, no less 
conspicuous for knowledge and virtue than for polite- 
ness of manners and a noble extraction, have gone great 
lengths the few years they have honored the bar with 
their attendance, not only to have reformed its language, 
but to instruct their fellow-barristers in the methods, 
forms, and connections of an argument, of which the 
English generally are most shamefully destitute. Even 
the furred nodders on the bench have benefited by 
listening to the orderly and nervous discourses of these 
young Scottish pleaders. Yet are they become the envy 
of both Bench and Bar ; of the latter, because they out- 
shine all that fill it ; and of the former, because they are 
independent, and do daily instruct those who sit upon 
it. Hence, and because you dread a reformation in the 
modern scandalous practice of the profession should an 
upright discerning Scotch lawyer come to preside on the 
bench, is one of those distinguished Scotch barristers 
become the object of your obloquy and virulence, al- 
though he is no less an ornament to the English senate 
and bar than to his family and country." 



1748.] LORD MANSFIELD. 261 

But his progress could not be diverted either by ma- 
levolent vituperation or by absurd eulogy. For some 
years afterwards he was chiefly distinguished as a par- 
liamentary leader. From the rigorous enforcement of 
the standing order against the publication of debates, 
we have hardly any fragments of his eloquence, — but 
memoir writers inform us of the occasions when he came 
forward with most effect. He ably carried through the 
House of Commons the bill for abolishing hereditary 
jurisdictions in Scotland, and the other measures de- 
vised by Lord Hardwicke for the tranquillity and civil- 
ization of the Highlands. Beyond the common routine 
of official duty, he opposed with spirit, although without 
effect, a bill introduced into the House of Commons to 
forbid the insurance of enemies' ships in time of war. 
The ultra-free-trade principles which he then advocated 
would appear very startling even at the present day, 
and, indeed, would furnish a defense of the Dutch doc- 
trine, that a beseiged city should sell gunpowder and 
balls to the beseiging army. Considering that, if enemies' 
ships are insured by British underwriters, there is a 
strong temptation to conimunicate intelligence to the 
owners of the sailing of British cruisers ; and that, upon 
a capture, there is an indemnity to the enemy from 
British capital, — independent of any technical objeetions 
from the illegality of a contract with an alien enemy, — 
there seems rational ground for prohibiting such policies 
of insurance. But Mr. Solicitor General Murray de- 
livered a very long and ingenious speech in defense of 
them. The first part of it, in which he inveighed against 
the narrow-minded views which had guided English 
commercial legislation, is' admirable. He is particularly 
severe upon the monstrous injustice and impolicy of 
the acts by which the Irish were prevented from import- 
ing their corn and cattle into England, — and, when they 
were establishing manufactures of their own, were pre- 
vented from exporting their manufactured goods to any 
foreign country where they might rival those of Eng- 
land. Having shown the high profits derived by us 
from the business of insurance, he thus proceeded : — 

" It is well known that there is not a more enterpris- 
ing, adventurous people in Europe than the French nat- 



262 REIGN OF GEORGE II. [1748— 

urally are, nor a people who have a greater itch for 
everything that looks like gaming. Their having no 
public insurance office nor any number of private in- 
surers in France does not proceed from want of rich men 
who would be ready and willing to undertake this busi- 
ness, but from the difficulty they find at present to get 
any custom in this line. The French merchants have 
been so long used to our shop, and have always found 
themselves so honorably dealt with here, that they will 
not voluntarily go elsewhere. Let things remain as they 
are, and it will never be in the power even of the govern- 
ment of France to set up a public insurance office, nor 
can any private man there become an underwriter with 
any hope of success. But this bill being passed, insur- 
ance offices will be established in Paris, Nantes, and Bor- 
deaux, in which French ships will be insured not only 
in time of war but in time of peace ; and not French 
ships only, but the ships of all other foreign nations. 
Thus, sir, we are to strip ourselves of a most valuable 
branch of trade, and to transfer it to the French that 
they may become more wealthy in peace and more 
formidable in war.'" 

When the glorious contest in which we had been for 
some years engaged was at last brought to a close, the 
task of defending the treaty of Aix-la-Chapelle in the 
House of Commons devolved upon the Solicitor General. 
It was first canvassed in the debate on the King's speech 
announcing that it had been concluded, before a copy 
of it had been laid upon the table of the House. In 
answer to the attack led on by Mr. Nugent, who moved 
a vote of censure, Murray said, " I know nothing of the 
late treaty which the honorable member has so violently 
attacked, estcept from the public newspapers; but if 
the articles be such as they represent, the peace is more 
advantageous for us than under the circumstances could 
have been expected, and the marvel is that the French 
were induced to agree to it." • He then goes over the 
articles seriatim such as th&y wQr& " rumored to he," — 
showing that, in reality, he must have had a considerable 
hand in negotiating them. The topic he chiefly dwelt 
upon was the danger to which the Dutch would have 
' HoUiday, 93-97 ; 14 Pari. Hist. 108-133. 



*75i.] LORD MANSFIELD 263 

been exposed if hostilities had been continued ; and, this 
having been ridiculed by his opponent, he indignantly 
observed : — 

" Danger, sir, has always a very different effect upon 
the imagination of those who are near and those who 
are at a distance from it. The former view it through 
the right, the latter through the wrong end of a telescope. 
Gentlemen of England, who sit here at their ease, may 
think that the Dutch might have trusted to their dykes, 
and defied the whole military power of France ; but 
when we talk of the necessity of making peace, we must 
consider in what light the Dutch themselves viewed the 
perils by which they were environed. Suppose (for, as 
I have no knowledge of the fact, I can only suppose) 
them ^o have been so much alarmed that they would 
have agreed to a neutrality if we had refused the offered 
terms of conciliation. These troops being withdrawn, 
our army would have been much inferior to that of 
France, and our national honor might have been put to 
hazard. The French court must have been sensible of 
that which seems to have escaped the acuteness of honor- 
able members opposite, and therefore, I again say, we 
may well wonder that the terms of peace are so favor- 
able " • 

For some sessions after this, Murray led a quiet life in 
the House of Commons, for Pitt was in office ; and, al- 
though there never existed any cordiality between them, 
while they remained colleagues there was a suspension 
of open hostilities. In the debate on the Bavarian 
subsidy they both spoke at great length, — to the aston- 
ishment of the House, on the same side ; and as the 
defensive was not the field in which the great patriot 
was qualified to shine, although he was so tremendously 
formidable as an assailant, — the silver-tongued lawyer 
will be found on this occasion much more dexterous and 
efficient in explaining the questions which then agitated 
the German Empire, and proving that it was for the 
advantage of England to induce Bavaria to take part 
with Austria against France.'' 

An unexpected event soon after occurred, which dis- 
turbed party connections and changed the history of. the 
' 14 Pari Hist. 331. ' Ibid. 936-970. 



264 REIGN OF GEORGE II. [1751. 

country — the death of the Prince of Wales. He was 
not much distinguished for prudence or steadiness ; but 
all who had been disappointed in their hopes of ad- 
vancement were inclined to speak favorably of his open- 
ness of manner and warmth of heart, and the reign of 
Frederic I., while dreaded by some, had been looked 
forward to by many with impatience. 

The reigning Sovereign being turned of seventy, and 
the youth who was now heir apparent being of tender 
years, it became necessary, in case of a demise of the 
Crown, to provide for the exercise of the royal authority 
by a Regent. George II. wished to appoint his favorite 
son, the Duke of Cumberland, — styled alternately the 
" Hero of CuUoden " and the " Butcher ; " and the 
people demanded the Princess Dowager of Wales, 
insinuating that an infant sovereign would be safer 
under the guardianship of his mother than of his uncle.' 
By way of compromise, a bill was brought in to constitute 
the Princess Regent — with a Council of which the Duke 
of Cumberland was to be President. Murray had the 
drawing of this bill, and the conduct of it though the 
House of Commons. His speech in support of it forcibly 
pointed out the defect in our constitution by which the 
next heir coming to the throne, although a baby in- 
capable of uttering an articulate sound, is supposed ta 
be of full age, and instruments passing under the great 
seal in his name have the same validity as if he had 
actually approved and sanctioned them, being of mature 
years, — so that the person who can get the baby 
monarch into his custody may first usurp supreme power 
as Protector, and then attempt to make himself the head 
of a new dynasty — as was done by the Duke of Glouces- 
ter, afterwards Richard III. ; pointed out the im- 
possibility of a general law to provide for carrying on 
the executive government during the minority of dis- 
ability of the Sovereign ; and dwelt upon the wisdom of 
going no further for the present than enacting the course 
to be pursued if his Majesty should be called away before 
his grandson. Prince George, had reached the age of 

' " I fear no uncles dead," was a common quotation, although the Duke: 
of Cumberland was a very honorable and, upon the whole, a very respectable 
character. 



I75I-] ' LORD MANSFIELD. 



265 



eighteen. He proved, easily enough, that the Princess 
Dowager was the fittest person to be named for Regent ; 
but he ineffectually tried to enforce the point that she 
ought to be controlled by a Council — the constitutional 
notion being that, with a few exceptions to protect the 
established religion and the succession to the throne, a 
Regent ought to exercise all the royal prerogatives under 
ministerial responsibility. In this courtier-like fashion 
did he try to struggle with the difficulty : — 

" I have so firm, so well-grounded an opinion of the 
many good qualities of the Princess, that I am con- 
vinced our investing her with sovereign power would 
be attended with happiness, and perhaps glory, to the 
nation ; but for this very reason I am against it : the 
precedent would have such weight, that a future parlia- 
ment could not depart from it, however strong the 
reason might be for following a different course ; and, 
as this might be of dangerous consequence to her 
posterity, I am prevented from evincing the regard 
which is due to her extraordinary endowments." ' 

The bill passed ; but George II. survived till his grand- 
son was able to say from the throne that " £^lorted in the 
name of Briton." 

Murray had managed this matter with such dexterity 
that he seemed hardly liable to the political vicissitudes 
by which hopes of official stability or promotion are 
sometimes dashed, and he himself thought he was equally 
secure under King or Regent, — when, in a clear sky, a 
storm arose which very nearly overwhelmed him. — He 
was charged with being an adherent of the Pretender. 

The scrape in which he so unexpectedly found himself 
involved occasioned infinite annoyance and vexation to 
him, and he did not get out of it with entire credit. 

When at Westminster School, his most intimate asso- 
ciates were four boys in the same form with himstlf ; 
Fawcet, Johnson, Stone, and Vernon. The father of 
the last, although a draper in Cheapside, was of ancient 
blood, and had embraced trade when a younger brother. 
The family estate descended upon him, but it was con- 
siderably reduced, and he continued to vend his wares 
as before. Like most of the landed aristocracy, he was 

' 14 Pari. Hist. 1033. 



j66 reign of GEORGE II. [1753. 

a furious Jacobite, — making no secret of his political 
propensities. Young Vernon was in the habit of taking 
Murray, Fawcet, Johnson, and Stone to his father's 
house on holidays; and there they most unquestionably 
have heard much Jacobitism talked, whatever else may 
have happened. Old Vernon was very kind to them, 
and took particularly to Murray — being charmed with 
his good looks, his vivacity, and his agreeable conversa- 
tion, as well as prejudiced in his favor by his noble birth 
and his true blue connections. The five young friends, 
although carried away in different directions by the ac- 
cidents of life, still kept up a correspondence by letter, 
and occasionally met together at supper at the Jacobite 
draper's in Cheapside after Mr. Murray had been called 
to the bar. Young Vernon embraced the same profes- 
sion, but, from ill health, had been unable to prosecute 
it. Fawcet had settled as a provincial barrister at New- 
castle, and had become Recorder of that town. Johnson 
had taken orders, and was an assistant master of Westmin- 
ster School. Stone, who was a remarkably fine classical 
scholar, was dedicating himself to literature, and hoped 
by his pen to rise to be a Prebendary, or a Commissioner 
of Customs. In the course of a year or two, young Ver- 
non died, — but Murray continued a friendly intercourse 
with the father, who, being childless, threw out hints 
that he meant to adopt him as a son, and actually left 
him by will his family estate in the counties of Ches- 
ter and Derby, which still belongs to the Mansfield- 
Murray s. 

After the death of Frederick Prince of Wales, Fawcet 
remaining Recorder of Newcastle, Johnson, by Murray's 
interest, from being a Prebendary of Durham was pro- 
moted to the see of Gloucester. Stone having been 
some time private secretary to the Duke of Newcastle, 
had been appointed sub-governor or preceptor to Prince 
George. 

It happened that at the dinner-table of the Dean of 
Durham the conversation turned upon Johnson's late 
elevation, and the interesting question arose, who was to 
have his prebend f The Dean said, " The last news from 
London is, that Dr. Johnson is to keep it." Fawcet, 
who was one of the party, observed, " I am glad John- 



*7S3-J LORD MANSFIELD. 



267 



son gets on so well, for I remember him a Jacobite sev- 
eral years ago, when he used to be with a relation of 

his, who was very disaffected, — one Vernon, a mercer, 

where they frequently drank the Pretender's health." 
The imprudent Recorder, elevated by wine and gnawed 
by envy, gave further particulars of those love feasts, 
and introduced the names of Murray, the Solicitor Gen- 
eral, who had gained such dclat by prosecuting the rebel 
Lords, and of Stone, now intrusted to conduct the 
studies and to form the principles of the Heir-Apparent 
to the throne. 

Among the guests present was the foolish old Lord 
Ravensworth. He most officiously, and in breach of the 
implied confidence which forms the charm of social in- 
tercourse, posted off to London, and communicated this 
conversation to Mr. Pelham. The Prime Minister lis- 
tened to the tale with much distaste, but felt it his duty 
to repeat it to the King. With admirable good sense, 
his Majesty exclaimed, " It is of very little importance 
to me what the parties accused may have said, or done, 
or thought, while they were little more than boys : I am 
quite satisfied with the assurance that they have since 
become, and now are, my very faithful subjects and trusty 
servants." 

But the matter was seriously taken up by the oppo- 
nents of the Government ; and a petition to the King, 
numerously signed, praying for investigation, contained 
the following passage : — " That to have a Scotchman of 
a most disaffected family, and allied in the nearest man- 
ner to the Pretender's first minister,' consulted on the 

' The following is Horace Walpole's account of this gentleman, in his 
sketch of the court of the Pretender : — " His next prime minister was Mur- 
ray, nominal Earl of Dunbar, brother of the Viscount Stormont, and of the 
celebrated Solicitor General. He was a man of artful abilities, graceful in 
his person and manner, and very attentive to please. He had distinguished 
/limself before he was of age, in the last parliament of Queen Anne, and 
chose to attach himself to the unsuccessful party abroad, for whose re-estab- 
lishment he had co-operated. He, when still very young, was appointed 
governor to the young princes ; but, growing suspected by the warm Jacob- 
ites of some correspondence with Sir Robert Walpole, and not entering 
into the favorite project of Prince Charles's expedition to Scotland, he 
thought fit to leave that court and retire to Avignon, where, while he was 
regarded as lukewarm to the cause, from his connection with the Solicitor 
General here, the latter was not at all less suspected of devotion to a court 
where his brother had been so long first minister." 



268 REIGN OF GEORGE II. Li75J. 

education of the Prince of Wales, and intrusted with 
the most important secrets of Government, must tend to- 
alarm and disgust the friends of the present royal family, 
and to encourage the hopes and attempts of the Ja- 
cobites." 

It was resolved that the accusation deserved no further 
notice; and Murray, who had been made very uneasy 
by the rumor about him which had got afloat, believed 
that the matter was at an end. But Stone prepos- 
terously insisted on a solemn inquiry ; and the charge 
against him, Murray, and Johnson was referred by the 
King to the Privy Council. 

Murray, strongly protesting his innocence, at first said 
he would resign his office sooner than submit to such a 
degrading examination, but was afterwards persuaded 
by his friends to appearand make his defense along with 
Johnson and Stone. 

When the hearing came on, there was no case made 
against the first supposed delinquent ; for Fawcet, the 
only witness, said that at such a distance of time he 
could not swear that Johnson had drunk the treasonable 
healths, or had been present at the drinking of them.' 

' He afterwards wrote the following suspicious letter to clear the Bishop, 
who, hearing that he was repeating the calumny, insisted on a written re- 
cantation from him : — 

" London, 29th January, 1753. 

" My Lord, — I take the liberty of giving you the trouble of this letter, in 
order to wipe off any reflections which may have been to your Lordship's^ 
prejudice from a misconstruction or misrepresentation of anything said by 
me at the Dean of Durham's last summer. It is now, I believe, near twenty 
years since your Lordship and I met at my relation's, and before that time I 
never had any acquaintance with your Lordship ; and it really surprises me 
very much^ that any inference from what I said of my relation's principles- 
in politics should, by any one, be applied to your Lordship. It is a very 
disagreeable thing to be giving an account of what has passed in any conver- 
sation ; but it is my duty, in the most solemn manner, to declare, that I did 
not, and could not, say anything which in the least could, or which was any 
way meant by me to charge your Lordship with being the proposer of, or ever 
being present at the drinking of any disloyal healths. I am sorry for the 
trouble you have had about this affair, and am with the greatest respect, 
'• My I-ord, 
" Your Lordship's most obedient, humble servant, 

" Chr. Fawcet. 

" Whatever has been construed as a surprise of mine at your Lordship's- 
preferment, I am sure it was meant by me as an intimation only that youi 
Lordship was fortunate in having the preferments drop at the time they 
did. 

" Lord Bishop of Gloucester.'' 



I7S3-J LORD MANSFIELD. 269 

But he positively averred that " both Stone and Mur- 
ray, on various occasions down to so late as the year 
1732, had, at Mr. Vernon's house, drunk the health of 
the Pretender, and once he was sure they had done so 
on their knees : the conversation was wont to be partly 
literature, partly treason ; the customary healths, THE 
Chevalier and The Earl of Dunbar." However, on 
his cross-examination, he prevaricated a good deal, and 
it appeared that he was actuated by an undue wish either 
to spite or to screen his old associates. 

Stone, although he had so loudly demanded the in- 
quiry, was generally supposed to be most seriously liable 
to the charge ; and there is now much reason to suspect 
that he tinctured the mind of his royal pupil with 
Jacobitical or high-Tory principles, — telling him that, 
although it was impossible to recall the Stuarts, they 
had been unjustly expelled, and that the divine right of 
kings ought to be the rallying cry of the new dynasty 
which God had placed upon the throne. He soon after 
fell into obscurity ; but great interest was then excited 
by his case, from a general wish that he should be re- 
moved and make way for a more enlightened and liberal 
instructor. His defense was said to be very ingenious, 
but no part of it has been preserved. The following is 
a slight sketch of the address of the Solicitor Gen- 
eral : — 

" Illiberal and unfair reflections have been made on the 
political principles of my relations; but, my Lords, I 
was early sent to seek my own way in the world ; I 
learned to form opinions for myself, and I have been 
well affected to the present establishment ever since I 
could think on the subject. When I went to the Uni- 
versity of Oxford I took the oaths to the Government, 
and I did so with seriousness and ex animo. Pleading 
in the courts at Westminster and at the bar of either 
House of Parliament, I never uttered a word to disparage 
the Protestant settlement. Or to create any longing for 
the exiled family. I determined never to come into the 
House of Commons but upon Whig principles, and I at 
last accepted a seat under the auspices of a noble Duke, 
now present, who, for forty years, has been the firmest 
friend of the Hanoverian line. With regard to office. 



2J0 REIGN OF GEORGE II. [1753. 

can it be supposed that a person of Sir John Strange 's 
well-known loyalty would have resigned in my favor if 
he had not been thoroughly convinced of my sincerity? 
Considering my position at the bar, I had little to gain 
by making any concessions for official rank ; and, ever 
siijce I have been in the King's service, I have got no- 
thing by my employment (I am sure I do not speak it 
reproachfully) but the ordinary fees for the business 
which has occupied my time. No friend of mine have 
I ever recommended to preferment. I have not been 
able to learn any objection to my public conduct except 
that, in prosecuting the rebel Lords, I did not load them 
with reproachful epithets ; as if epithets would have 
added to their guilt. I never considered that such lan- 
guage would be agreeable to my royal master ; and, if 
I had been counsel for the Crown against Sir Walter 
Raleigh, and that unfortunate man had been as clearly 
guilty of high treason as the rebel Lords, I would not 
have made Sir Edward Coke's speech against him to 
gain all Sir Edward Coke's estate and all his reputa- 
tion." 

He then commented minutely and forcibly on the 
evidence of Fawcet ; and having thanked the Lords for 
their indulgence in hearing him, and the goodness and 
justice by which the King was actuated in desiring that 
his servants should not be stabbed in the dark, he con- 
cluded by a solemn declaration that he had never given 
any treasonable toasts at Mr. Vernon's or elsewhere, and 
that he had never consciously been present when any 
such toasts were drunk.' 

Mr. Murray having concluded, the Lords of the 
Council came to a unanimous resolution of reporting to 
his Majesty " that there appeared to them no founda- 
tion for any part of the charge, and that the characters 
of the parties accused were in no degree affected bv 
it."^ ' 

' Some accounts say that he voluntarily took an oath before the Lords 
of the Council to the same effect ; but this I do not believe, for he would 
hardly have ventured on such an appeal to Heaven, under the reservation 
in his own mind that the toasts were drunk in frolic, and that in the midst 
of vaporing language, there was no leal design of treason. 

' Hall. 98-104 ; Doddington's Diary, 211-235 ; Walpole's Memoirs of 
the Reign of George II., i. 266-270. 



I7S3-] LORD MANSFIELD. 27 1 

The discussion was revived before Parliament by a 
motion of the Duke of Bedford for an address to the 
King, praying that he would be graciously pleased to 
direct a copy of all these proceedings to be laid before 
the House of Lords ; but this was negatived without a 
division,' and no further inquiries was made into the cir- 
cumstances. 

Thus Murray preserved his position, notwithstanding 
an accusation which threatened such serious conse- 
quences. Although it did not in any degree hinder his 
advancement in public life, it somewhat damaged his 
reputation for sincerity, and it afforded a topic to his 
opponents of which they ever after unsparingly availed 
themselves. They perceived that there was a vulnerable 
point, at which they might aim a staggering blow ; and, 
subsequently, on important occasions, he betrayed an 
increased timidity, which materially impaired the effect 
of his consummate talents for debate." 

Soon after the close of this inquiry Pitt resigned his 
office, being mainly induced to do so from the difficulty 
he had for some time experienced in gratifying his pro- 
pensity to assail his old rival. He made ample amends 
for his late unwilling forbearance. Thus, in uttering 
a vehement invective against the University of Oxford 
for its Jacobitism, he palpably referred to the supposed 
youthful opinions of Mr. Murray : — 

" The body he was describing," he said, " was learned 
and respectable; so much the more dangerous! He 
would mention what had happened to himself the last 
summer, on a party of pleasure thither. They were at 
the window of the Angel Inn ; a lady was desired to 
sing God save great George our King. The chorus 

> This debate is not mentioned in the Parliamentary History, but a full 
account of It is given by Horace Walpole, Mem. Geo. II., vol. i. p. 272-290 

' An attempt was made to ridicule the Duke of Dedford, and to laugh 
away the whole afiFair by &jeu d' esprit, which thus begun :— 

" To probe thy crimes, disloyal Fiend, 
See council of the state convened. 
' My Lords' (an age-wise peer addrest), 
' These crimes convulsed my loyal breast ; 
Ere manhood's down, accusers say. 
Had graced his chin, ere taught to pray. 
He drank, afraid of no detection, 
Disloyal healths with genuflection.' " 



272 REIGN OF GEORGE II [i7S3- 

was re-echoed by a set of young lads drinking at a col- 
lege over the way, but with addition of rank treason. 
He hoped, as they were boys, he should be excused for 
not having taken more notice of them. Perhaps some 
of them might hereafter zealously fill the office of At- 
torney or Solicitor General to a Brunswick Sovereign. 
After this, walking down the High Street, in a book- 
seller's shop he observed a print of a young Highlander 
with a blue ribbon. The bookseller, thinking he wanted 
it, held it out to him. But what was the motto ? Hunc 
saltern everso juvenem ! This was the prayer of that 
learned body. Yet, if they are disappointed in their 
plots, the most zealous of them, when leader of the 
Government party in this House, may assure you that 
he always approved of the Protestant succession, and 
that he refused to enter parliament except upon Whig 
principles." 

" Colors, much less words," adds Horace Walpole, 
who has reported this speech, " could not paint the con- 
fusion and agitation that worked in Murray's face during 
this almost apostrophe. His countenance spoke every- 
thing that Fawcet had been terrified to prevaricate 
away.'" 

We shall find that Pitt long afterwards returned to 
the assault with the same weapon in his hand, and that 
it was unmercifully used by Junius and by Home 
Tooke against Lord Chief Justice Mansfield in the suc- 
ceeding reign. 

Murray closed the longest and most brilliant Solicitor 
Generalship recorded in the annals of Westminster Hall 
by a service of lasting importance to the rights of Great 
Britain, upon which depends her greatness as a maritime 
power. The King of Prussia, backed by some neighbor- 
ing states, had sought to remodel the law of nations in a 
way that would have rendered naval superiority in time 
of war of little avail, — by asserting that belligerents are 
not entitled to seize upon the ocean the goods of ene- 
mies in neutral ships ; by insisting that contraband of 
war, the property of neutrals, may be carried by them 
to enemies' ports ; by denying the right of belligerents, 
under any circumstances, to search the vessels of neu- 
' Walp. Mem. i. 358. 



'753-J LORD MANSFIELD. o^ny^ 

trals ; and by attacking the legality and validity of all 
proceedings in the Courts of Admiralty of England for 
a condemnation of neutral ships or goods by reason of 
an alleged violation of the duties of neutrality. These 
pretensions were embodied in a memorial presented by 
M. Michell, the Prussian minister at the Court of St. 
James's. The masterly answer to it is assigned to Sir 
George Lee, Judge of the Prerogative Court, Dr. Paul 
the Advocate General, and Sir Dudley Ryder the At- 
torney General, as well as Mr. Murray the Solicitor Gen- 
eral ; but we know, from undoubted authority, that the 
composition of it was exclusively his.' Having myself 
been employed to write such papers, I may possibly be 
not unqualified to criticise it, and I must say that I 
peruse it with " a mixed sensation of admiration and 
despair." The distinctness, the precision, the sound- 
ness, the boldness, the caution, which characterize his 
propositions, are beyond all praise ; and he fortifies them 
by unanswerable arguments and authorities. Preserving 
diplomatic — nay, even judicial calmness and dignity, — 
he does not leave a tatter of the new neutral code unde- 
molished. Thus with imperishable granite he laid the 
foundation on which the eternal pillar of England's 
naval glory has been reared. 

This performance particularly excited the admiration 
of the President Montesquieu, who said it was " response 
sans rdplique." It is the great repertory to which our 
advocates and judges have had recourse when any part 
of these dangerous pretensions has been readvanced. 
Sir William Scott (Lord Stowell) often quoted it, always 
spoke of it with reverence, and represented his own de- 
cisions, which are received with submission throughout 
the civilized world, as only an expansion of its prin- 
ciples. 

It would be desirable to relieve the tiresomeness of , 
these details by describing the Solicitor General as he 
appeared in the social circle, but at this period we know 
hardly anything of him except as a lawyer or a poli- 
tician. After the death of Pope, although he by no 
means neglected literature, he does not seem to have 
admitted any' literary character to his intimacy. I am 

' Holliday, 424. 
HI.— 18. 



274 REIGN OF GEORGE 11. L^SS 

sorry I cannot find that he ever noticed his countryman 
Thomson, or that he ever desired to be introduced to 
the author of the Rambler. In truth, he was so over- 
whelmed by professional and official business, that, when 
he could escape from it for a brief interval, he preferred 
repose, with less intellectual society, to gladiatorial con- 
tests with the rising wits of the age. He continued 
gratefully attached to those who had been kind to him 
in his juvenile days, and he still used often to visit the 
first Lord Foley on a Saturday in the country, and re- 
main with him till the Monday morning, when business 
called him back to town. " On a brother barrister in- 
terrogating him how he could spend his time where so 
little pleasantry or liveliness prevailed, — ' It is enough,' 
said he, ' if I contribute by my visits to the entertain- 
ment of my fast friends ; or, if I fail in that, I am sure 
to contribute by lassitude to the repose of my own fac- 
ulties.' '" 

If he did not foster any young poet, he deserves the 
credit of discovering and turning to public usefulness the 
genius of Blackstone as a jurist. The professorship of 
civil law in the University of Oxford being vacant, he 
recommended this extraordinary man, then quite un- 
known, as decidedly the fittest person to fill it. The 
Duke of Newcastle promised him the appointment; but, 
ever eager for a dirty job rather than for the public 
good, he thought it right to probe a little the political 
principles of the candidate, and to ascertain how far he 
could be relied upon as a party tool, and, more suo, he 
thus addressed Mr. Blackstone when presented to him : 
"Sir, I can rely on your friend Mr. Murray's judgment 
as to your giving law-lectures in a good style, so as to 
benefit the students ; and I dare say I may safely rely 
upon you, whenever anything in the political hemisphere 
is agitated in that University, you will, sir, exert your- 
self in our behalf." The answer was, " Your Grace may 
be assured that I will discharge my duty in giving law- 
lectures to the best of my poor abilities." "Ay, ay," 
replied his Grace, hastily, " and your duty in the other 
branch, too." Blackstone made a hesitating bow, and, 
a few days after, had the mortification to find, from the 
' Holliday, 131, 



1 754.] LORD MAXSFIELD. 



27s 



Gazette, that Jenner, utterly ignorant of the law, civil, 
canon, and common, but considered the best electioneer- 
ing agent in the whole University, was appointed to 
expound the Pandects, which he had never read, and 
could not construe. 

Alurray behaved with spirit and judgment ; for he 
advised IBlackstone to settle at Oxford, and to read law- 
lectures to such students as were disposed to attend him. 
The plan had solendid success, and, happily, soon after 
suggested to the mind of Mr. Viner the establishment ol 
a professorship for the Common Law of England in the 
University of Oxford. To this we owe the immortal 
Commentaries of Blackstone, which, when they were 
given to the world, drew forth the following high tribute 
of approbation from him to whose judicious patronage 
they were to be traced. A brother peer having asked 
him, as a friend, what books he would recommend for 
his son, who was determined to be a lawyer, the Chief 
Justice replied,— 

" J^iy good Lord, till of late I could never with any 
satisfaction to myself answer such a question ; but since 
the publication of Mr. Blackstone's Commentaries I can 
never be at a loss. There your son will find analytical 
reasoning, diffused in a pleasing and perspicuous style. 
There he may inhale imperceptibly the first principles on 
which our excellent laws are founded ; and there he may 
become acquainted with an uncouth crabbed author, 
Coke upon Littleton, who has disgusted and disheartened 
many a Tyro, but who cannot fail to please in the 
modern attire in which he is now decked out." 

Murray had been Solicitor General for the unexampled 
period of twelve years, and grumbled at his bad luck in 
so long holding a subordinate office. Not only was the 
chief responsibility of legal business thrown upon him, 
but, while the Attorney General was politically a mere 
cipher, he himself was relied upon as the most efficient 
defender of the policy of the Government in the House 
of Commons. An event now happened which many 
thought would at once place Murray in the situation of 
Prime Minister — the sudden death of Mr. Pelham. Who 
was to succeed him ? The Duke of Newcastle, notwith- 
standing his immense borough patronage and his low 



276 REIGN OF GEORGE II. [1754. 

talent for intrigue, was pronounced by George II. as fit 
only to be " master of the ceremonies at a small German 
court;" and the nation, aware of his frivolity and his 
atisurdities, concurred in this opinion. Pitt and Henry 
Fox were both men of splendid abilities, but they were 
both disliked by the King, and neither of them then had 
a sufficient aristocratic connection or popular reputation 
to be able to storm the Cabinet. Murray, even in 
Pelham's lifetime, had been virtually the leader of the 
Lower House, and there would have been little change 
in the aspect of proceedings of that assembly if he had 
been put at the head of the Treasury. He was very 
agreeable to the King, and he was generally respected 
by the nation. A serious objection to him arose in some 
quarters from the suspicion of Jacobitism — not that any 
one believed he would betray his trust and try to bring 
in the Pretender, — but some thinking men were afraid of 
his acting upon arbitrary principles of government, and 
many condemned him for the duplicity of which they 
believed he had been guilty. From personal reasons, 
Pitt and Fox, who ptill held office, both opposed his 
advancement ; and even Lord Hardwicke, the Chancellor, 
viewed him with an eye of jealousy." Had Murray him- 
self really desired the elevation, and made a bold effort 
to obtain it, all these difficulties would probably have 
been overcome, and our party history at the conclusion 
of this and the commencement of the succeeding reign 
would have taken a very different turn ; but, from a 
prudent dread of the vicissitudes of ministerial life, and 
from a high feeling that his destiny called him to reform 
the jurisprudence of his country, he sincerely and 
ardently desired to be placed on the bench, — and the 
special object of his ambition was to be Chief Justice ot 
England, with a peerage. Horace Walpole, indeed 
sarcastically says " he was always waiving what he was 
always courting ; " but all impartial observers declare 
that he invariably refused to go out of his profession for 
any promotion. 

The consequence was, that the Duke of Newcastle, the 
person most incompetent, and, therefore, least ex- 
citing jealousy of all who had been thought of on this 

' Walpole's Memoirs, vol i. p. 329. 



1754.] 



LORD MANSFIELD. 



277 



occasion, became Prime IMinister, to the astonishment 
of the whole nation, — from the King on the throne to 
his Grace's own lacqueys, who had often been jeered at 
by brother lacqueys in the lobby of the House of Lords 
while, addressed by their masters' titles, they discussed 
their masters' characters. 

Murray at last gained a step in professional rank, be- 
ing appointed Attorney General, on the elevation of Sir 
Dudley Ryder to the bench. At the same time, he 
undertook the arduous duty of being Government leader 
in the House of Commons, which he would probably 
have declined had he forseen that Pitt, dissatisfied with 
this arrangement, was again to resign his office, and to 
go into hot opposition. 




CHAPTER XXXIII. 

CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL 

HE WAS MADE LORD CHIEF JUSTICE OF 

THE king's BENCH. 

SOON after Mr. Murray had been placed in his new 
position, he had the offer of professional advance- 
ment. Sir John Strange, the Master of the Rolls, 
died ; and as the holder of this office may sit in the 
House of Commons, the Duke of Newcastle was willing 
to confer it upon his champion there. To the Chancel- 
lor's letter proposing this arrangement the following 
answer was received : — 

" Clermont, Saturday, one o'clock. 
" My dear Lord : — I have the honor of your Lordship's 
letter, & am most truly concerned for poor S' John 
Strange, whom I honored & loved extremely for his 
many excellent publick qualities, and most amiable 
private ones. I scarce know any man, with whom I had 
so little acquaintance, that I should more regret. 

" I am much obliged to you for your laying your 
thoughts before me in so kind & full a manner. There 
is every consideration which can come in question upon 
this occasion, stated in the plainest and most impartial 
light. To be sure it ought to be offered to the Attorney 
General. Common justice & proper regard require it 
& therefore I hope y Lordship will sound him upon it, 
tkis evening. I shall take no notice to him of it, directly 
or indirectly. It is fit that your Lordship sho'' have the 
whole transaction of this affair, & I shall approve what- 
ever you do in it, as he likes best ; I cannot at all guess 
what he would do. For the King's service, it is, I think, 
to be wished that he should remain where he is ; but, as 
his health is not quite good, and this is a very honor- 
able station, consistent with his seat, figure, and use in 



1754-] LORD MANSFIELD. 



279 



the House of Commons, I cannot pretend to judge what 
he will do. If he sho^ accept it, it will be difficult to 
replace him." 

Murray, without hesitation, declined the office, as he 
considered it of a subordinate character, and not by any 
means opening to him the opportunity to which he 
aspired of making a great name as a Judge. 

The two next years, although varied by strong excite- 
ment, must have been fertile of anxiety and annoyance 
to Murray, and he must sometimes have longed for the 
obscure repose of the Rolls. He had to defend an Ad- 
ministration which was feeble and unfortunate ; and he 
was constantly assailed by an opponent of unparalleled 
power in invective and sarcasm, wholly unscrupulous in 
choosing topics and expressions most to his purpose, 
and animated against him by long rivalry and personal 
dislike. 

Unfortunately, the Parliamentary History at this time 
is almost a blank ; the few pages which it gives to several 
sessions being filled up with King's speeches and ad- 
dresses of the two Houses in return. But memoir- writers 
furnish us with a lively description of some of the con- 
flicts which took place, and of the general results. 
" Pitt," says Lord Waldegrave, "undertook the difficult 
task of silencing Murray, the Attorney General, the 
ablest man as well as the ablest debater in the House of 
Commons."' Horace Walpole himself, then a member 
of the House of Commons, in reference to the outset of 
the new Administration, observes, — 

" Murray, who was at the beginning of the session was 
awed by Pitt, finding himself supported by Fox, sur- 
mounted his fears, and convinced the House, and Pitt 
too, of his superior abilities. He grew most uneasy to 
the latter. Pitt could only attack ; Murray only de- 
fend. Fox, the boldest and ablest champion, was still 
more formed to worry ; but the keenness of his sabre 
was blunted by the difficulty with which he drew it from 
the scabbard ; I mean the hesitation and ungracefulness 
of his delivery took off from the force of his arguments. 
Murray, the brightest genius of the three, had too much 
and too little of the lawyer : he refined too much, and 
' Walp. Mem., p. 31. 



28o REIGN OF GEORGE II. [1754. 

could wrangle too little, for a popular assembly. Pitt's 
figure was commanding ; Murray's engaging, from a 
decent openness ; Fox's dark and troubled ; yet the 
latter was the only agreeable man. Pitt could not un- 
bend ; Murray in private life was inelegant ; Fox was 
cheerful, social, communicative. In conversation none 
of them had wit ; Murray never had ; Fox had in his 
speeches, from clearness of head and asperity of argu- 
ment. Pitt's wit was genuine ; not tortured into the 
service, like the quaintness of my Lord Chesterfield.'" 

Henry Fox, in a letter to a friend, after giving some 
account of two speeches delivered by Pitt in the follow- 
ing session, adds, " In both speeches, every word was 
Murray ; yet so managed, that neither he nor any body 
else did or could take public notice of it, or in any de- 
gree reprehend him. I sat near Murray, who suffered for 
an hour."" 

"On another occasion," according to Mr. Butler, "Pitt 
made use of an expression of savage triumph which was 
long in every mouth. Having for some time tortured 
his victim by general invective, he suddenly stopped, 
threw his eyes around, then, fixing their whole power on 
Murray, uttered these words in a low, solemn tone, 
which caused a breathless silence : ' I must now address 
a few words to Mr. Attorney: they shall be few, but 
they shall be daggers.' Murray was agitated ; the look 
was continued ; the agitation increased. ' Judge Festus- 
trembles I' exclaimed Pitt ; 'he shall hear me some other 
day.' He sat down. Murray made no reply, and a lan- 
guid debate proved the paralysis of the House.'" 

The qualities of the rival orators are well contrasted 
by my friend Mr. Welsby: — 

"In closeness of argument, in happiness of illustration, 
in copiousness and grace of diction, the oratory of 
Murray was unsurpassed ; and, indeed, in all the qualities 
which conspire to form an able debater, he is allowed to 
have been Pitt's superior. When measures were attacked^ 
no one was better capable of defending them ; when 
reasoning was the weapon employed, none handled it 
with such effect ; but against declamatory invective hi& 

' Walp. Mem. i, 490. * Appendix to Lord Waldegrave's Mem., p, 153.. 
' Butler's Remains,!. 154. 



I7SS-] LORD MANSFIELD. 281 

very temperament incapacitated him from contending 
with so much advantage. He was like an accomplished 
fencer, invulnerable to the thrusts of a small sword, but 
not equally able to ward off the downright stroke of a 
bludgeon." ' 

Nothing, however, gives us such an exalted opinion of 
the powers of both these extraordinary men as the 
praise of one who was himself an elegant speaker, who 
was their contemporary, who had often listened to them, 
who had no personal favor for either of them, and who 
loved much more to sneer than to flatter. Thus writes 
Lord Chesterfield to his son : — 

" Your fate depends upon your success as a speaker ; 
and take my word for it, that success turns more upon 
manner than matter. Mr. Pitt and Mr. Murray, the 
Attorney General, are, beyond comparison, the best 
speakers. Why? Only beeause they are the best 
orators. They alone can inflame or quiet the House ; 
they alone are attended to in that numerous and noisy 
assembly, that you might hear a pin fall while either of 
them is speaking. Is it that their matter is better, or 
their arguments stronger, than other people's ? Does 
the House expect extraordinary information from them ? 
Not in the least; but the House expects pleasure from 
them, and therefore attends ; finds it, and therefore 
approves." 

Murray had some consolation for the troubles and 
anxiety he went through in the opportunities which his 
influence with the Prime Minister gave him of obliging 
others. He was now able to procure for his friend Lord 
Milton the appointment to the office of Lord Justice 
Clerk, the highest Criminal Judge in Scotland ; which he 
thus announced to him : — 

"Kenwood, Oct. 18, 1755. 

" My dear Lord, — I have just rec* the favor of yours. 
If there was but a remote possibility that I could be ol 
use in anything which concerned you and your ffamily, 
I shou'd have reason to take it very ill if you did not let 
me know it. I happened to be with the Duke of New- 
castle yesterday about 12 o'clock when the D. of Argyll's 
^etter came. I think I may wish you joy of the thing 
' Eminent Judges, p. 393. 



282 REIGN OF GEORGE II. [1756. 

being done. The Chan' is at Wimple ; but when I left 
the D. of N. he was determined to do it immediately 
without v/aiting to consult any body, therefore I need 
not tell you how much I am 

" Your aff. & ob. hu. serv' 

" W. Murray." 

Notwithstanding the dclat which Murray obtained 
from the contest he was carrying on in the House of 
Commons, and the power and patronage he enjoyed, he 
was most heartily sick of his position ; and at the close 
of the session in May, 1756, he expressed deep regret 
that he had not adhered to the profession to which he 
was originally destined, so that he might have been 
vegetating unseen as the vicar of some remote parish. 
He often declared that he wished to have for his com- 
panions only the schoolmaster, the apothecary, and the 
exciseman ; and that he desired to know nothing of 
politics, except from a weekly newspaper taken in by 
the village club. 

After the prorogation, the state of affairs, instead 'of 
mending, became more disastrous. The Duke of New- 
castle's imbecility had involved the country in hostilities 
with France, and the war, which under other auspices was 
hereafter to be so glorious, began most unfortunately. 
Minorca was taken, — what was worse, the national honor 
was considered tarnished by the flight of Admiral Byng 
without an effort to relieve Port St. Philip's ; and the 
clamor against the Government rose almost to frenzy. 
With what horror did Murray look forward to the re- 
assembling of Parliament ! How did he expect to quail 
under the vituperation of his rival ! At this time his 
situation certainly was very disheartening. There seemed 
to be no chance of any honorable retreat for him. Sir 
Dudley Ryder had only been Chief Justice of the King's 
Bench two years, and, being in a green old age, and 
likely long to fill the office, was about to be raised to 
the peerage. 

The day after Mr. Attorney General prepared the bill 
for the new barony, he heard that Sir Dudley Ryder was 
dead. Although he, no doubt, would have made every 
effort and submitted to any sacrifice for the purpose of 



i7S6.] LORD MANSFIELD. 283 

preventing this catastrophe, we can hardly suppose that 
it excited no pleasurable feeling in his mind. 

He immediately put in his claim for the vacant office. 
All perceived that this promotion must bring about an 
immediate change in the Government. Charles Town- 
shend, then an Opposition leader, said to him, " I wish 
you joy, Mr. Attorney; or, to speak truly, I may wish 
joy to myself, for you will ruin the Duke of Newcastle 
by quitting the House of Commons, and the Chancellor 
by going into the House of Lords." ' The Duke of 
Newcastle, who, notwithstanding his general obtuseness, 
was very acute in such matters, declared that " the writ 
for creating Murray Chief Justice would be the death- 
warrant of his own administration," and resolved to try 
every possible expedient for the purpose of keeping him 
in the House of Commons. The negotiations (con- 
sisting only of earnest entreaties on one side, and flat 
refusals on the other) lasted several months, during 
which the Duke always rose in the tempting bribes 
which he offered, — beginning with the duchy of Lan- 
caster for life, and, after tellerships and reversions with- 
out end for himself and his nephew Lord Stormont, 
ending with the offer of a pension of ;£'6,ooo a-year if he 
would only stay in the House of Commons till the ad- 
dress was carried and the new session fairly begun. 
Murray, who saw full well that, in spite of any exertions 
he could make, the Ministry must be beaten on the 
address, declared that " he would on no terms agree to 
remain in the House of Commons for one session longer, 
or one month, or one day even to support the address ; 
and that he never again would enter that assembly." 
Horace Walpole, in his usual satirical tone, says, " He 
knew that it was safer to expound laws than to be ex- 
posed to them; and, exclaiming, 'Good God! what 
merit have I, that you should load this country, for which 
so little is done with spirit, zvith the additional burthen of 
£6,QOO a-year ? ' at last peremptorily declared that if he 
was not to be Chief Justice, neither would he any longer 
be Attorney General." 

The Duke of Newcastle and the Lord Chancellor, 
who were equally desirous to keep Murray where he was, 
' Walpole's Mem., ii. 64. 



284 REIGN OF GEORGE II. [i7S6. 

were at last so far overcome by his firmness as to ofTer 
him the office of Lord Chief Justice of the King's. 
Bench ; but stoutly made a difficulty about his peerage, 
in the hope that, not gaining all he desired, he might 
still change his mind. From the following letter to 
Lord Hardwicke it appears that there had been a good 
deal of discussion on this subject : — 

" June 26, 1756. 

" My Lord, — I don't know whether the way in which 
I chose to express myself last night, when I said I had 
always considered the peerage, & Ch. J. as going to- 
gether, sufficiently conveyed that without the one I 
wished to decline all pretensions to the other. 

" Upon reflexion, as I have no hesitation, & never 
thought otherwise, I think it the most decent way to 
speak to be understood ; for it wou'd grieve me ex- 
treamly to have the King twice troubled in any respect 
on my account. No possible event can alter my anxiety 
for his ease or service. 

" I beg once more to give vent to the sentiments of 

my heart by saying, that the sense of my obligations to 

your Id' will be as conspicuous as my friendship to the 

Duke of Newcastle, which can only end with the life of 

" Y' W most obliged, & obd' humble serv* 

" W. Murray." ' 

The Duke of Newcastle, pretending that the King 
was very reluctant to grant the peerage, wrote thus to 
the Attorney General : — 

" Kensington, July 2, 1756. 

" Dear Sir,— The King ask'd, whether I had seen 
Murray. I said, yes. ' Well, what says he ?' ' Extremely 
sensible. Sir, of your Majesty's great goodness to him, 
but wishes not to accept the one without the other.' 
^ Why ! must I be forced ? / will not make him a Peer 
'till next session.' ' Sir, all that Mr. Murray desires is, 
that they may be defer'd. I apprehend that it would be 
difficult, tho' perhaps possible, to make the Chief Jus- 
tice this term.' ' I know, that may be delay'd ; or it is 
not necessary to do it now ;' — and here ended the dis- 
course. I hope I have done right. I am sure I intended 

' Hardwicke MSS., Wimple. 



I7S6.J LORD MANSFIELD. 285 

it ; but it is my misfortune to be distrusted by tliose 
from whom I never did deserve it. 
" I am, dear Sir, 

" Ever yours, 

" HoLLis Newcastle." ' 

Murray was evidently aware of the juggle, and de- 
clared that without the peerage he would neitiier accept 
the Chief Justiceship nor remain Attorney General. 

If we may trust to the sincerity of the following letter 
from the Duke of Newcastle to Lord Hardwicke, his 
Grace had first given way : — 

" Was I singly to consult my own wishes, or perhaps 
my own interest, your Lordship knows what my thoughts 
are ; but when I consider that the present question is, 
whether Mr. Attorney General shall remain in the 
House of Commons, out of the King s service, or be Ch. 
Justice and a peer, I own I think the first would be at- 
tended with great inconveniencies to the King's service, 
& I should hope that his Majesty would be graciously 
pleased to grant his request, in consideration of the zeal 
& ability which he has showed for a considerable num- 
ber of years, in the employments with which his Majesty 
has honored him." 

It was pretty plainly perceived that if Mr. Murray 
were now refused his just demands, he might be ex- 
pected to be seen speedily in the House of Commons an 
Opposition leader ; and the King's scruples being easily 
overcome, the Chancellor wrote to announce that Mr. 
Attorney was to be Chief Justice and a peer. The fol- 
lowing is the cold, stiff, and hypocritical reply : 

" Sunday night, Oct. 24, 1756. 
" My Lord, — I am just come to town, and found your 
Lordship's letter. It is impossible to say how much I 
feel your Lordship's great goodness and attention to me 
throughout this whole affair. The business of my life 
at all times and on all occasions shall be to show the 
gratitude with which I have the honor to be 
" Your Lordship's most obliged 

" and ob' hum : serv' 

"W. Murray." 

• Hardwicke MSS., Wimple. 



286 REIGN OF GEORGE II. [lyb*- 

On Monday, the 8th day of November, 1756, Murray 
was sworn in Chief Justice of the King's Bench before 
Lord Chancellor Hardwicke, and sreated a peer by the 
title of Baron Mansfield, of Mansfield in the county of 
Nottingham. The following day the Administration to 
which he had belonged was dissolved ; but surely he is 
not to be blamed for the firmness which he exhibited in 
refusing to remain longer its champion in the House of 
Commons. 

No party considerations could require from him a use- 
less sacrifice ; and, for the welfare of the state, it was 
much better to bend to public opinion, and to make way 
for a new minister who might restore confidence and 
conduct the war in which England was involved to an 
honorable issue. Morally speaking, he had as good a 
right to the office which he demanded, as the eldest son 
has to the fee-simple lands of which his father died 
seized. He was by far the fittest man in the profession 
to fill it, and he had earned it by professional services 
such as no law officer had ever rendered to any gov- 
ernment. 

The appointment was almost universally praised. A 
very few illiberal individuals, trying as far as they were 
able to justify the imputation cast upon the English by 
Lord Lovat when he said that his "cousin Murray's 
birth in the north might mar his rise," grumbled because 
a Scotsman was placed at the head of the administration 
of justice in Westminster Hall, and tried invidiously to 
account for his rise by saying that " he had no merit be- 
yond the dogged industry which distinguished his pov- 
erty-stricken countrymen ;" ' but all generous spirits 

• Thus he was assailed in a letter, addressed to the editor of a newspaper, 
supposed to have been written by a brother lawyer with whom he was on 
familiar terms of intimacy : — " I should be sorry to see a Scotchman on an 
English bench of justice, for several reasons ; which I hope may occur to 
the wisdom of the great in power before such judges are appointed, as it 
may not be very proper for me to mention them. An Englishman ought not 
to be put under the dominion of a Scot. It would prove an indelible re- 
flection upon us to see a Scot in so high a station, when so many of our own 
countrymen are infinitely better qualified and more deserving of preference. 
I remember an old friend of mine used to tell me of ' a termagant Scot,' as 
Shakspeare phrases it, that domineered at the bar of one of our courts of 
justice, in the reign of one of our kings who was second of his name, — 
probably Charles or James the Second, for it is natural to believe the plaid 
might meet with encouragement here in these reigns. This Scot emerged 



i7S6.] LORD MANSFIELD. 287 

frankly admitted hjs superiority for genius and acquire- 
ments, and scornfully repudiated the notion that, after 
the whole Island of Great Britain had been united under 
a common legislature, regard was to be' had, in filling any 
office under the Crown, to the birth-place rather than to 
the qualifications of the candidate. 

Before following him in the new sphere which he en- 
tered, I ought to notice the graceful manner in which he 
concluded his career at the bar. To comply with ancient 
forms, it was necessary, as a preliminary step to his be- 
coming a judge, that he should take upon himself the 
degree of the coif, and be transferred from Lincoln's Inn 
to Sergeants' Inn. The head of the Society of which 
leave is taken, on this occasion, in a complimentary 
speech, addresses the retiring member, — who makes a 
suitable reply. The Honorable Charles Yorke (after- 
wards so brilliant in his life, and so unfortunate in his 
death) was then Treasurer of Lincoln's Inn. In pre- 
senting to the new Sergeant the votive offering of a 
purse of gold, he with good taste as well as warmth re- 
ferred to the luster he had conferred upon the English 
bar, and the qualifications he possessed for the high 
office to which he was appointed by the King with the 
most auspicious anticipations of the people. The fol- 
lowing was the reply, — which, we are told by Mr. HoUi- 
day, who was present, was delivered with the greatest 
grace, ease, and perspicuity :' — 

" I am too sensible, sir, of my being undeserving of 
the praises which you have so elegantly bestowed upon 
me, to suffer commendations so delicate as yours to in- 
sinuate themselves into my mind ; but I have pleasure 
in that kind of partiality which is the occasion of them. 

from his native wealds, rocky caverns, and mojntainous heights pretty early 
in life, to fineer over a Scotch education with a little English erudition, and 
undoubtedly for preferment too. He brought along with him the same prin- 
ciples of government and loyalty as his country and family were remark- 
able for, and what his brother carried over to Rome, like apples to Alcinous, 
or coals to Newcastle. One would think such an opportunity might have 
had some gentle influence on the rugged nature of our emigrant, his pauper 
pride and native insolence ; but it happened otherwise, for the Scot could 
not alter his nature ; and so, in the midst of all the learning of our courts, 
he continued still a very Scot." — Broadboitom Journal. 
' HoUiday, p. 105. 



388 REIGN OF GEORGE II. [1756- 

To deserve such praises is a worthy object of ambition ; 
and from such a tongue flattery itself is pleasing. 

" If I have had, in any measure, success in my profes- 
sion, it is owing to the great man who presided in our 
highest courts of judicature the whole time I attended 
the bar. It was impossible to attend him, to sit under 
him every day, without catching some beams from his 
light. The disciples of Socrates, whom I will take the 
liberty to call the great lawyer of antiquity, since the 
first principles of all law are derived from his philosophy, 
owe their reputation to their having been the reporters 
of the sayings of their master. If we can arrogate 
nothing to ourselves, we can boast the school we 
were brought up in ; the scholar may glory in his mas- 
ter, and we may challenge past ages to show us his 
equal. 

" My Lord Bacon had the same extent of thought, 
and the same strength of language and expression ; but 
his life had a stain. 

" My Lord Clarendon had the same ability and the 
same zeal for the constitution of his country; but the 
civil war prevented his laying deep the foundations of 
law, and the avocations of politics interrupted the busi- 
ness of the Chancellor. 

" My Lord Somers came the nearest to his character ; 
but his time was short, and envy and faction sullied the 
luster of his glory. 

" It is the peculiar felicity of the great man I am 
speaking of, to have presided very near twenty years, 
and to have shone with a splendor that has risen supe- 
rior to faction, and that has subdued envy. 

" I did not intend to have said, I should not have 
said so much on this occasion, but that in this situa- 
tion with all that hear me, what I say must carry the 
weight of testimony rather than appear the voice of 
panegyric. 

" For you, sir, you have given great pledges to your 
country ; and large as the expectations of the public 
are concerning you, I dare say you will answer them. 

" For the Society I shall always think myself honored 
by every mark of their esteem, affection, and friendship, 
and shall desire the continuance of it no longer than 



i7S6.] LORD MANSFIELD. 289 

while I remain zealous for the constitution of this coun- 
try, and a friend to the interests of virtue." 

Mr. Holliday, worked up to enthusiasm by the recol- 
lection of the scene he had witnessed, " bears ample 
testimony to the tribute of applause, to the general joy 
and the marked approbation of the audience.'" On this 
occasion Mr. Sergeant Murray gave a grand dinner in 
Lincoln's Inn, rivaling the splendor of the olden time, 
to many of the nobility as well as to the chiefs of the 
law." 

' Page 106. 

' The following is the Order issued by the Benchers for regulating the 
solemnity : — 

"At an Extraordinary Council, held the 2d day of November, 1756. 

" Ordered — That the gates leading to Portugal Streets, Chichester Rents, 
and Bishop's Court from Lincoln's Inn be shutt on Monday next, from ten 
in the morning for the remaining part of that day. 

" That the two great gates be shutt from ten in the morning for the re. 
mainder part of that day ; and that six porters and two constables attend at 
each of those gates in order to lett in the nobility, judges, and other com. 
pany who are to dine at the Sergeant's feast, as likewise to lett in the mem- 
bers of the Society and their friends, 

" That the passage to the Hall be boarded up, and doors made as usual 
to lelt the company into the Hall ; and that two porters and a constable 
attend at each of those doors. 

" That the garden gates be shutt all that day. 

" That the gardener, his man, and two porters do patrole the terras wadk, 
to prevent any person from coming over the wall. 

" That Mr. Johnson, the steward to this Society do hire twelve extra- 
ordinary porters, or such number of porters as shall be necessary to do the 
neceKt<»«v duty on that day ; and he do appoint the several porters to their 
several »i.ai.<ins. 

" That great care be taken that there be no disturbance or riott committed 
in the Inn on that day. 

" That in case the porters or other servants do not keep good order, or 
are negligent in doing of their dutys, Ihat Mr. Johnson do report their mis- 
behaviour at the next Council. 

" That the cooks (Messrs. Davis and Cartwright) who are to dress the 
Sergeant's dinner, have the use of the kitchen and all the offices belonging 
thereto, together with the furniture of the same ; and that Mr. Johnson do 
intimate to them that they are to provide such chairs for the company u 
shall be wanting." 



III. — 19 




CHAPTER XXXIV. 

VIEW OF LCRD MANSFIELD'S JUDICIAL CHARACTER 
AND OF HIS DECISIONS. 

WE are now to behold Lord Mansfield a venerable 
magistrate, clothed in ermine, seated on his 
tribunal, determining the most important rights, 
and adjudicating upon the lives of his fellow-citizens. 
He presided in the court of King's Bench for the first 
time on Thursday the nth of November, 1756. Mod- 
ern usage does not permit a judge to deliver an in- 
augural address, or we should have had from him a 
striking enumeration of the duties imposed upon the 
person filling this high office, and a masterly exposition 
of the manner in which they ought to be performed. 
Although he did not then delineate in the abstract the 
beau ideal of a perfect judge, he afterwards proved to 
the world by his own practice that it had been long 
familiar to his mind. 

I feel the extreme difficulty of an attempt to present 
to my readers a view of Lord Mansfield's judicial char- 
acter and of his decisions. I am disheartened by the 
utter failure of my predecessors ;' but I must proceed at 
all risks, or this memoir would be compared to a life of 
Bacon, omitting all mention of his philosophy, or of 
Marlborough entirely passing over his campaigns. 
While the ensuing chapter may be entirely skipped by 
those who take interest only in personal anecdotes and 
party contests, it may be perused a second time by 
others who, knowing that the history of a country can- 
not be well understood without the study of its juris- 

' No reader, professional or non-professional, can possibly get thjctigh 
the voluminous account of Lord Mansfield's judgments to be found in 
Holliday and Evans ; and it has not suited the plan of any of the able 
writers who have given a sketch of Lord Mansfield's life to examine 
them, except in a very cursoiy manner. 



LORD MANSFIELD. 291 

prudence, are desirous of learning minutely what great 
niagistrates actually did in administering justice to in- 
dividuals and in aiming to improve the institutions over 
which they presided.' 

Perhaps I ought to begin with considering the ques- 
tion "whether Lord Mansfield was indeed a great magis- 
trate?" I remember the time when it was fashionable 
in Westminster Hall to mention his name with a sneer. 
One might have supposed that he was chiefly memorable 
for having tried to introduce into the Common Law, 
some "equitable doctrines " which had been rejected, 
and that having long imposed upon the world by his 
plausibility, he was at last discovered to have been ig- 
norant and shallow. English lawyers in those days 
chose to take their opinions of him from two men, deep- 
ly versed in their profession, but entirely devoid of all 
other learning — who not only had no taste for his liberal 
acquirements, but actually bore him a deep personal 
grudge. Lord Eldon, having begun to practice in the 
Court of King's Bench under Lord Mansfield, took it 
into his head that the Chief Justice set his face against 
all except those who had been educated at Westminster 
and Christ Church ; and he left the court with disgust, 
ever loudly and deeply cursing the supposed author of 
his early disappointment. Again, Lord Kenyon with 
some reason mortally hated his predecessor, who had 
strenuously opposed his appointment, because he did 
not wish to see in the seat of Chief Justice of England 
one who did not know the characters of the Greek lan- 
guage, and of Latin knew only some scraps to be mis- 
quoted. Their hostility to the memory of Mansfield 
was sharpened by their common dislike of Buller, who, 
reverencing him to idolatry, was in the habit of drawing 
offensive comparisons between him and his detractors. 
The influence of the Lord Chancellor and of the Chief 
Justice was much greater than that of the disappointed 
puisne who had sought refuge in the obscurity of the 

' Gibbon's masterly sketch of the Roman Civil Law (Decline and Fall 
ch. xliv.) is one of the most interesting parts of his great work. But I 
am afraid that I shall be supposed as much enamored of my craft an 
was of bif the old minstrel who 

" Poured to lords and ladies gay 
The unpremeditated lay." 



29* REIGN OF GEORGE II. 

Gommon Pleas, and those who were desirous of having 
" the ear of the Court " on either side of the Hall knew 
that they could in no way recommend themselves to 
favor more effectually than by talking of " the loose no- 
tions which had lately prevailed in certain quarters, and 
which were in the course of being happily corrected." 
The juniors took their tone from the leaders, and in the 
debating clubs of students in the Inns of Court the 
speakers were inflamed by a pious desire to restore the 
Common Law to its ancient simplicity. 

But these delusions are no more ; and Mansfield may 
now be compared to the unclouded majesty of Mont 
Blanc when the mists which for a time obscured his 
summit have passed away. 

There are a few undeniable facts, which are quite con- 
clusive to prove that he enjoyed an unparalleled as- 
cendency, and that this ascendency was well deserved. 
Although he presided above thirty years in the Court 
of King's Bench, there were in all that time only two 
cases in which his opinion was not unanimously adopted 
by his brethren who sat on the bench with him. Yet 
they were men of deep learning and entire independence 
of mind. He found there Sir Thomas Denison, Sir 
Michael Foster, and Sir John Eardly Wilmot, who was 
afterwards Chief Justice of the Common Pleas, and re- 
fused the great seal. They were succeeded by Sir Joseph 
Yates ;' Sir Richard Aston," who had been Chief Justice 
of the Common Pleas in Ireland ; Sir James Hewitt,' 
afterwards Lord Chancellor of Ireland, and a peer by 
the title of Lord Lifford ; Sir Edward Willes ;' Sir Wil- 
liam Blackstone ;' Sir William Henry Ashurst ;" Sir Nash 
Gross ;' and Sir Edward Buller.' Again : of the many 
thousand judgments which Lord Mansfield pronounced 
during the third part of a century, two only were re- 
versed. The compliment to Chancellors that their de- 
crees were affirmed amounts to very little, for the only 
appeal is to the House of Lords, where the same person 
presides, so that it may be considered ab eodem ad 
eundem. But a writ of error then lay from the King' s 
Bench either to the Exchequer Chamber, constituted of 

' Jan. 24, 1763. ■ April 5, 1765. » Nov. I, 1766. • Jan. 27, 1-63. 
» April 3, 1770. ' .^pril 10, 1770. ' Feb. 9, 1777. - April 0, 177S. 



LORD MANSFIELD. 293 

the Judges of the Common Pleas and Exchequer, or to 
the House of Lords, to be heard before the Lord Chan- 
cellor and all the Judges of England, without any pre- 
disposition to affirm." What will appear to my profes- 
sional brethren a more striking fact still, strongly 
evincingthe confidence reposed in his judicial candor 
and ability by such men as Dunning and Erskine, op- 
posed to him in politics, who practiced before him,-— in 
all his time there never was a bill of exceptions tendered 
to his direction ; the counsel against whom he decided 
either acquiescing in his ruling, or being perfectly satis- 
fied that the question would afterwards be fairly brought 
before the Court and satisfactorily determined on a mo- 
tion for a new trial.' I must likewise observe that the 
whole community of England, from their first experience 
of him on the bench, with the exception of occasional 
displays of party hostility, concurred in doing homage 
to his extraordinary merits as a judge. Crowds eagerly 
attended to listen to him when he was expected to pro- 
nounce judgment in a case of importance. To gratify 
public curiosity, the unknown practice began of report- 
ing in the newspapers his addresses to juries ; and all 
suitors, sanguine in their belief of being entitled to suc- 
ceed, brought their causes to be tried before him, so that 
the business of the King's Bench increased amazingly, 

' At first starting the holder of the great seal (Lord Keeper Henley) had 
no voice in the House of Lords ; but when created Lord Northmgton he 
might have revenged himself for his decrees which had been upset with Lord 
Mansfield's concurrence. Then followed Lord Camden, a Whig Chancellor ; 
and, although the two following Ch.incellors, Lord Bathurst and Lord 
Thurlow, were Tories, they bore no peculiar personal good-will to the 
Chief Justice of the King's Bench. 

' When I was at the bar, I knew a learned Sergeant who never went into 
court without several blank bills of exceptions in his bag, or rather car- 
touche-box, to be filled and fired off at the Cnief Justice in the course of the 
morning. I should state, for the information of my unlearned readers (orthe 
lay gents), that a bill of exceptions is given by the statute of Westminster 
passed in the reign of Edward I., and is an admirable check on the rash- 
ness and mendacity of judges ; for it empowers the parties to put down in 
writing the exact terms in which the judge who tiies the cause has laid down 
the law, and subjects him to an action if he does not acknowledge it by his 
seal. It then goes, by writ of error, before a superior tribunal, where his 
ruling is reconsidered, and may be either affirmed or reversed. On a motion 
for a new trial, the judge at his discretion states verbally how he laid 
down the law, no averment being allowed against his statement ; and the 
question cannot be carried before a higher court. 



394 REIGN OF GEORGE II. 

while that of the other courts of common law dwindled 
away almost to nothing. He was regarded, if possible, 
with still greater veneration in his native country, where 
they were not only proud of him for adding new lustre 
to the name of Scotsman, but grateful for the admirable 
manner in which, as a lord in the House of Peers, he 
revised and corrected the decisions of their supreme 
court, giving new consistency and certainty both to their 
feudal and commercial code. Even the learned on the 
continent of Europe, who had hitherto looked upon 
English lawyers as very contracted in their views of 
jurisprudence, and had never regarded the decisions of 
courts as settling any international question, acknowl- 
edged that a great jurist had at last been raised up 
among us, and they placed his bust by the side of 
Grotius and D'Aguesseau. In his own lifetime, and after 
he had only a few years worn his ermine, he acquired 
the designation by which he was afterwards known, and 
by which he will be called when, five hundred years 
hence, his tomb is shown in Westminster Abbey — that 
of "THE GREAT LORD MANSFIELD." 

Therefore, notwithstanding the successful efforts of a 
few narrow-minded and envious persons to disparage 
him soon after his death, I think I must be justified in 
giving faith to the unanimous opinion of his contem- 
poraries in his favor, and I may go on with confidence 
to explain by what means he gained the high reputation 
which he enjoyed. 

The moving power which worked such marvelous 
effects was his earnest desire worthily to discharge the 
duties of his office, that he might thereby serve his 
country and make his own name be remembered and 
honored." Men even of great talents and acquirements 
have felt their ambition satisfied simply by being placed 
in a high judicial office, the dignity and emoluments of 
which they were entitled to hold for life, unless there 

' He was not merely pleased at the moment with the occupation of try- 
ing causes, as some are with hunting and others with angling. When M. 
Cottu, the French advocate, went the Northern Circuit, and witnessed the 
ease and delight with which Mr. Justice Bayley got through his work, he 
exclaimed, " II s'amuse a juger;" and Judge Buller used to say somewhat 
irreverently, " that his idea of Heaven was to sit at Nisi Prius all day, and 
play at whist all night." 



LORD MANSFIELD. 295 

should be an address to the Crown by the two Houses 
■of Parliament for their removal. These considered 
merely how they could get on with least trouble to them- 
selves, — taking care to avoid every appearance of reck- 
lessness which might cause open scandal and create a 
danger of public censure. Mansfield, with little en- 
thusiasm in his nature, had one ruling passion, which did 
not work by fits, but was strong, constant, and insatiable. 
On the day of his inauguration as Chief Justice, instead 
of thinking that he had won the prize of life, he con- 
sidered himself as only starting in the race. 

My readers are already acquainted with some of the 
requisites he possessed for this noble undertaking ; — his 
quickness of perception — his logical understanding — his 
scientific acquaintance with jurisprudence — his great ex- 
perience in business from having been nearly twenty 
years at the head of his profession — his resoluteness of 
purpose — and his unwearied power of application. All 
these might have been insufficient, but he quickly showed 
that, seated on his tribunal, he was patient, courteous, 
firm, decided in his opinions, possessed of unexampled 
powers of despatch without ever appearing to be in a 
hurry, capable of explaining his judgments with admirable 
precision and perspicuity, and not only unswayed by 
awe of power or love of popularity, but free from the 
besetting sin of being unduly under the influence of 
•counsel either from favor or from fear. 

He began with certain reforms in the practice of his 
court, which I must mention as they materially con- 
tributed to his success, although their importance cannot 
be properly perceived by the uninitiated. His first bold 
step was to rescue the bar from the monoply of the leaders. 
Day by day, duriiig the term, each counsel when called 
upon had been accustomed to make as many motions 
successively and continuously as he pleased. The conse- 
quence was, that by the time the Attorney and Solicitor 
General, and two or three other DONS, had exhausted 
their motions, the hour had arrived for the adjournment; 
and as the counsel of highest rank was again called to 
at the sitting of the court next morning, juniors had no 
opportunity of making any motions with which they 
might be intrusted till the last day of term, when it was 



296 REIGN OF GEORGE II. 

usual, as a fruitless compliment to them, to begin with 
the back row — after the time had passed by when their 
motions could be made with any benefit to their clients. 
The consequence was, that young men of promise were 
unduly depressed, and more briefs were brought to the 
leaders than there was time for them to read, even had 
they been toiling all night at their chambers instead of 
sitting up in the House of Commons absorbed in party 
struggles. Thus the interests of the suitors were in 
danger of being neglected, and the judges did not re- 
ceive the fair assistance from the bar in coming to a 
conclusion which they were entitled to expect. To 
remedy these evils, a rule was made that the counsel 
should only make one motion a-piece in rotation ; and 
that if by chance the court rose before the whole bar 
had been gone through, the motion should begin next 
morning with him whose turn it was to move at the 
adjournment. The business was thus both more equally 
distributed and much better done. 

A bad practice had prevailed, that almost all cases, 
turning upon questions of law which came before the 
judges sitting in banco were argued two or three and 
even as often as four times over in successive terms,, 
although not attended with any real difficulty — a further 
argument being ordered, almost as a matter of course, 
at the request of the party who apprehended that the 
inclination of the court was against him. Lord Mansfield 
always refused a second argument, unless the court 
entertained serious doubts, which were likely to be better 
cleared up by further discussion at the bar than by an 
immediate examination of the authorities and by private 
deliberation. 

The custom likewise had been to abstain from decid- 
ing at the close of the argument, — there hardly ever 
being a judgment entered without several entries of 
\:uria advisari vult, — whereby, not only was expense 
increased and justice delayed, but the judges had very- 
often forgotten the reasons and authorities brought for- 
ward at the bar before publicly declaring their opinion. 
In Raynard v. Chdce^ which was argued for the first time 
the day after Lord Mansfield took his seat on the bench^ 

• Burr., vol. i. p. i. 



LORD MANSFIELD. ,97 

the counsel and the attorneys, who expected as a matter 
of course that there would be divers hearings and long 
consultations before the Judges would venture to pro- 
nounce their decision, were astounded to hear the new 
Chief Justice say that " the Court, having no doubts on 
the subject, considered itself bound, as well to spare 
the parties the expense and anxiety of further discussion, 
as to terminate the suspense of others who might be 
interested in the question to be decided, and would ac- 
cordingly proceed to give judgment at once." But he 
was cautious as well as ready, and, wherever the occasion 
required, he was eager to receive any new lights which 
could be thrown on obscure points of law by the re- 
searches and the ingenuity of council. 

During Lord Mansfield's time, an evil was remedied 
which I am sorry to say had been revived before I was 
called to the bar, and, I am afraid, still inveterately 
exists — the delay experienced in preparing a special case 
or statement of the facts in evidence on a trial before a 
jury, when it is found that the rights of the parties de- 
pend upon a question of law, and it is agreed that these 
facts shall be stated for the opinion of the judges. 
When such a statement is afterwards to be drawn up by 
the counsel on opposite sides — from their multiplied en- 
gagements, or from their indolence and love of procras- 
tination — and still more from their pugnacity and exces- 
sive zeal to benefit and please their clients, — great danger 
arises of long delays and vexatious discussions before a 
final hearing can take place. Lord Mansfield himself 
dictated the statement in open court, and it was signed 
by the counsel before the jury were discharged. He fur- 
ther ordered that the case should be invariably entered 
for argument within the first four days of the ensuing 
term^ so that judgment was sure to be pronounced within 
a few months from the time when the action was origin- 
ally commenced. 

He also made a general order that no cases should be 
postponed, even with the consent of the parties, without 
the express authority of the court ; and cases so post- 
poned" were appointed to come on peremptorily at the 
beginning of the following term. 

By these regulations, the heavy arrears which he found 



29? REIGN OF GEORGE II. [i7S6— 

on taking his seat were soon cleared away ; and after- 
wards, during the whole period of his Chief Justiceship, 
at the end of every term every case had been disposed 
of that was ripe for being heard and decided. 

But there was no complaint of precipitation or af- 
fected despatch ; and, to show that the satisfactory ad- 
ministration of justice was the only object in view, in- 
stead of determining cases sent to the Court of King's 
Bench from the Court of Chancery by a written answer, 
simply saying aye or no, called a " certificate," Lord 
Mansfield introduced and continued the practice of giv- 
ing an elaborate judgment on these occasions vivk voce, 
fully explaining the reasons and authorities on which 
his opinion was founded.' 

I ought likewise to mention the improvements he in- 
troduced in the trial of causes at Nisi Prius. Hitherto 
it had been usual for all the counsel on each side, if they 
were so disposed, to address the jury, and much irregu- 
larity prevailed in examining and cross-examining the 
witnesses. By his care the system which we now follow 
was gradually matured ; and, although liable to some 
objections, it is probably as well adapted as any that 
could be devised for the fair investigation of truth, as 
well as for celerity. According to this, the junior coun- 
sel for the plaintiff having " opened the pleadings," or 
stated the issues or questions of fact raised by the record 
for decision, the leading counsel for the plaintiff alone 
addresses the jury ; the plaintiff's evidence follows : the 
defendant's leading counsel then addresses the jury, 
and, if he gives no evidence, the debates at the bar here 
close ; but if there be evidence given for the defendant, 
the plaintiff's leading counsel addresses the jury by way 
of reply. The judge then sums up, and the jury pro- 
nounce the verdict. Lord Mansfield hesitated long 
about making the right to reply depend upon the giving 
of evidence by the defendant, as thereby, to avoid a re- 
ply, important evidence is sometimes kept back, and in- 

' Lord Mansfield : — " I found it a custom in cases sent by the Court of 
Chancery for our opinion, to certify it privately to the Lord Chancellor in 
writing, without declaring in this court either the opinion itself or the rea- 
sons upon which it is grounded. But 1 thtnk the custom wrong as well as 
unsatisfactory to the bar." (Cowp. 34.) Lord Kenyon returned to it, how- 
ever, because Lord Eldon was disposed to carp and jeer at his reasons. 



»787-J LORD MANSFIELD. 



299 



convenience follows from the defendant's counr.el having 
the privilege of speaking without any answer from his 
antagonist ; but his masterly superintendence and great 
authority kept everything straight, and, while he pre- 
sided, trial by jury in civil cases, which in theory ap- 
pears so absurd, and which answers so badly in Scot- 
land and other countries in which it is not understood, 
seemed a perfect invention for the administration of 
justice. J 

These are little more than matters oi procedure, which, 
however wisely devised, could not of themselves have 
deserved any lasting praise. I now come to the princi- 
ples which guided him as a judge, and which have made 
his name immortal. 

He formed a very low, and I am afraid a very just, es- 
timate of the Common Law of England which he was 
to administer. This system was not at all badly adapted 
to the condition of England in the Norman and early 
Plantagenet reigns, when it sprang up, — land being then 
the only property worth considering, and the wants of 
society only requiring rules to be laid down by public 
authority for ascertaining the different rights and inter- 
ests arising out of land, and determining how they 
should be enjoyed, alienated, and transmitted from one 
generation to another. In the reign of George II., Eng- 
land had grown into the greatest manufacturing and 
commercial country in the world, while her jurisprudence 
had by no means been expanded or developed in the 
same proportion. The legislature had literally done 
nothing to supply the insuffiiency of feudal law to regu- 
late the concerns of a trading population ; and the Com- 
mon Law judges had, generally speaking, been too un- 
enlightened and too timorous to be of much service in 
improving our code by judicial decisions. Hence, when 
questions necessarily arose respecting the buying and 
selling of goods, — respecting the affreightment of ships, 
— respecting marine insurances, — and respecting bills of 
exchange and promissory notes, no one knew how they 
were to be determined. Not a treatise had been pub- 
lished upon any of these subjects, and no cases respect- 
ing them were to be found in our books of reports, — 
which swarmed with decisions about lorda and villeins. 



300 REIGN OF GEORGE II. [1756— 

— about marsha'ing the champions upon the trial of a 
writ of right by battle, — and about the customs of ma- 
nors, whereby an unchaste widow might save the for- 
feiture of her dower by riding on a black ram and in 
plain language confessing her offense. Lord Hardwicke 
had done much to improve and systematize Equity — but 
proceedings were still carried on in the courts of' Com- 
mon Law much in the same style as in the days of Sir 
Robert Tresilian and Sir William Gascoigne. Mercan- 
tile questions were so ignorantly treated when they came 
into Westminster Hall, that they were usually settled 
by private arbitration among the merchants themselves. 
If an action turning upon a mercantile question was 
brought in a court of law, the judge submitted it to the 
jury, who determined it according to their own notions 
of what was fair, and no general rule was laid down 
which could afterwards be referred to for the purpose of 
settling similar disputes. 

The greatest uncertainty prevailed even as to the ter- 
ritories over which the jurisdiction of the Common Law 
extended. The King of this country, from having no 
dominions annexed to his crown out of England, except 
Ireland, the Isle of Man, and the Islands in the English 
Channel — a remnant of the duchy of Normandy, — had 
become master of extensive colonies in every quarter 
of the globe, so that the sun never set upon his empire. 
Some of these colonies had been settled by voluntary 
emigration, without any charter from the Crown ; some 
had been granted by the Crown to be ruled under pro- 
prietary governments ; some had received charters from 
the Crown constituting legislative assemblies ; some had 
been ceded by foreign states under conditions as to the 
observance of existing laws ; and some were uncon- 
ditional conquests. Down to Lord Mansfield's time, no 
general principles had been established respecting the 
laws to be administered in colonies so variously circum- 
stanced, or respecting the manner in which these laws 
might be altered. 

He saw the noble field that lay before him, and he re- 
solved to reap .the rich, harvest of glory which it pre- 
sented to him. Instead of proceeding by legislation,, 
and attempting to codify as the French had done very 



I7S7-] LORD MANSFIELD. 301 

successfully in the Coustumier de Paris, and the Ordin- 
ance de la^Marine, he wisely thought it more according 
to the genius of our constitutions to introduce his im- 
provements gradually oy -wa^ of judicial decision. As 
respected commerce, there were no vicious rules to be 
overturned, — he had only to consider what was just, ex- 
pedient, and sanctioned by the experience of nations 
farther advanced in the science of jurisprudence. His 
plan seems to have been to avail himself, as often as op- 
portunity admitted, of his ample stores of knowledge, 
acquired from his study of the Roman civil law, and of 
the judicial writers produced in modern times by France, 
Germany, Holland, and Italy, — not only in doing justice 
to the parties litigating before him, but in settling with 
precision and upon sound principles a general rule, after- 
wards to be quoted and recognized as governing all 
similar cases. Being still in the prime of life, with a 
vigorous constitution, he no doubt fondly hoped that he 
might live to see these decisions, embracing the whole 
scope of commercial transactions, collected and method- 
ized into a system which might bear his name. When 
he had ceased to preside in the Court of King's Bench, 
and had retired to enjoy the restrospect of his labors, he 
read the following just eulogy bestowed upon them by 
Mr. Justice Buller, in giving judgment in the important 
case of Lickbarrow v. Mason, respecting the effect of the 
indorsement of a bill of lading: — 

" Within these thirty years the commercial law of this 
country has taken a very different turn from what it did 
before. Lord Hardwicke himself was proceeding with 
great caution, not establishing any general principle, but 
decreeing on all the circumstances put together. Before 
that period we find that, in courts of law, all the evi- 
dence in mercantile cases was thrown together; they 
were left generally to a jury ; and they produced no 
general principle. From that time, we all know, the 
great study has been to find some certain general prin- 
ciple, which shall be known to all mankind, not only to 
rule the particular case then under consideration, but to 
serve for the future. Most of us have heard these prin- 
ciples stated, reasoned upon, enlarged, and explained, 
till we have been lost in admiration at the strength and 



j02 REIGN OF GEORGE II. ['756— 

stretch of the understanding. And I should be very 
sorry to find myself under a necessity of differing from 
any case upon this subject which has been decided by 
Lord Mansfield, who may be truly said to be the founder 
of the commercial law of this country.'" 

We shall see that he was equally successful in distin- 
guishing the laws and legislation applicable to the 
different classes of colonies under the Crown, and that 
he improved our jurisprudence wherever the improve- 
ment of it, by judicial decision, was practicable ; but that 
he failed, with some discredit, when he tried to carry 
his empire beyond its just limits, and attacked rules by 
which the descent of landed property in this country 
had been governed for centuries, and which, if they 
were inexpedient, could only be overturned by the power 
of parliament. 

Reserving the political cases tried before Lord Mans- 
field to be introduced chronologically in the subsequent 
part of this memoir, I wish now to lay before my readers 
some specimens of his judgments in determining private 
rights. But here I am embarrassed by the riches which 
surround me. I have often had to lament that hardly 
a fragment remains to enable us to appreciate the learn- 
ing and genius of judges celebrated by their contem- 
poraries. Lord Mansfield is handed down to us by Bur- 
row, Douglas,' Cowper, Durnford, and East, the very best 
law reporters that have ever appeared in England ; and 
I am bewildered when I try to make a selection from 
their voluminous works. 

I naturally begin with the law of INSURANCE, — almost 
his own creation ; and I might copy the whole of a 
copious treatise on the subject by Mr. Justice Park, 
which is composed almost entirely of his decisions and 
dicta. But the bulk of my readers, being neither as- 
surers nor assured, — nor caring very much about policies, 
valued or open, — nor about perils of the seas, capture, 

' 2 T. Rep. 63. 

' This gentleman, when made an Irish peer by the title of Lord Glen- 
»ervie, ascribed his rise to the reputation he had acquired by reporting in 
Lord Mansfield's decisions ; and took for his motto, " Per varios casus." 
This is rather better than that adopted by a Jearned acquaintance of mine 
on setting up his carriage, " Causes produce Effects" — which is pretty much 
m the style of " Quid rides;' iar the tobacconist ; or " QuaeA, Quack," for 
the doctor whose crest waa a dack 



1787] LORD MANSFIELD. 



ZPZ 



or barratry, — nor about warranties, convoys, deviation, 
or abandonment, — will be contented with a taste of 
Lord Mansfield's reasoning upon the duty of the party 
effecting a policy of insurance to disclose the dangers to 
which the subject-matter insured may be exposed. — The 
governor of Fort Marlborough, in the island of Sumatra, 
had insured the place against capture for a year, — and 
it was taken by Count D'Estaigne within the year, after 
a very gallant defense. The underwriters refused to 
pay, on the ground that there had not been any dis- 
closure to them of the weakness of the fort, or the prob- 
ability of its being attacked by the French : — 

Lord Mansfield : " Insurance is a contract upon specu- 
lation. The special facts upon which the risk is to be 
computed lie most commonly in the knowledge of the 
assured only. The underwriters trust to his statement, 
and proceed upon confidence that he does not keep back 
any circumstance which they have not the means of 
knowing. The keeping back such a circumstance is 
considered a fraud, and avoids the policy, although the 
suppression happen by mistake ; because the risk is 
really different from that which they intended to take 
upon themselves. The policy would equally be void 
against the underwriters if they concealed anything ex- 
clusively within their knowledge — as, if they had learned 
by private information that the ship to be insured had 
arrived safely at her port of destination, — and they 
might be compelled to refund the premium which they 
had fraudulently received. This governing principle is ap- 
plicable to all contracts. Good faith forbids either party, 
by concealment of what he alone knows, to draw the 
other into a bargain which he would certainly avoid if 
their information were equal. But either party may 
innocently be silent as to matters upon which both may 
equally exercise their judgment, Aliud est celare, aliud 
tacere : neque enitn id est celare quicquid reticeas ; sed 
cum quod tu scias, id ignorare, emolumenti tui causa, 
velis eos quorum intersit id scire.^ This definition of con- 
cealment, restrained to the eflficient motives and precise 
subject of any contract, will generally hold to make it 
void in favor of the party misled by his ignorance of the 
Cic. de Off., i. c. 13, 13. 



304 



REIGN OF GEORGE II. [i75<5— 



thing concealed. There are many matters as to which 
the assured may be innocently silent. He need not 
meation what the underwriters know, or ought to know, 
or may be supposed to form conjectures upon for them- 
selves ; as, the difficulties ol the voyage, the variation of 
the seasons, or the probability of lightning, hurricanes, 
and earthquakes. So the underwriters are bound to 
know every cause which may occasion political perils, — 
from the rupture of treaties and from the various oper- 
ations of war, as well as the probability of safety from 
the continuance or return of peace, or from the imbecility 
of the enemy through the weakness of their councils or 
their want of physical resources. Men argue differently 
from natural phenomena and political appearances ; they 
have different degrees of knowledge and different 
capacities. But the means of information and forming 
a correct opinion are open to both ; so far each professes 
to act from his own skill and sagacity, and, therefore, 
neither need communicate to the other. The reason of 
the rule which requires disclosure is to prevent frauds, 
and to encourage good faith ; it is confined to such facts 
as vary the nature of the contract, which one privately 
knows, and the other is ignorant of and has no reason to 
suspect. The question, therefore, must always be whether 
there was, under all the circumstances, at the time the 
policy was underwritten, a fair statement, or a conceal- 
ment, either fraudulent or undersigned, varying materially 
the risk understood to be run." ' 

He then went on to apply these principles, so lucidly 
explained, to the facts of the case ; and the verdict for 
the plaintiff was confirmed." 

' Qu. how far an objection might not have been made to the validity of 
this insurance, on the ground that a governor ought not to be allowed tc 
lessen his motives to do his duty in defending, to the last extremity, the place 
which he commands ? 

' Garter V. Boehm, 3 Burr. 1905 ; Sir W. Bl. 591. — Lord Mansfield in- 
finitely improved the procedure in actions on marine policies, by introducing 
what is called the " Consolidation Rule," by which he obviated much vexation, 
delay, and expense, and brought the real question between the underwriters 
and the assured to a speedy decision on its real merits. The mysteries of 
this rale may not be disclosed to the profane, — He likewise did much for the 
improvement of commercial law in this country by rearing a body of special 
jurymen at Guildhall, who were generally returned on all commercial causes 
to be tried there. He was on terms of the most familiar intercourse with 
lliem ■ net only conversing freely with them in court, but inviting them to 



^787-J LORD MAA^SFIELD. 305 

Likewise with regard to bills of exchange and prom- 
issory notes, Lord Mansfield first promulgated many 
rules that now appear to us to be as certain as those 
which guide the planets in the orbits. For example, it 
was till then uncertain whether the second indorsee of a 
bill of exchange could sue his immediate indorser with 
out having previously demanded payment from the 
drawer; and it was said three Chief Justices had ruled 
the point one way at Nisi Prius, and as many Chief 
Justices had ruled it the other way: — 

Lord Mansfield .■ " I cannot persuade myself that there 
has really been such a variety of opinions upon this 
question. But, however that may be, it must now be 
determined by the nature of the transaction, general 
convenience, and mercantile usage. A bill of exchange 
is an order to draw on the drawee, who has, or is sup- 
posed to have, effects of the drawer in his hands to pay 
to the holder. When the drawee has accepted, he is 
the principal debtor, and due diligence against him must 
be used before the other parties, who are his sureties, 
can be held liable. Therefore, if the acceptor is not 
called upon when the bill is due, the drawer and in- 
dorsers are discharged. When the bill of exchange is 
• indorsed by the person to whom it is made payable, as 
between indorser and indorsee, it is a new bill of ex- 
change, and the indorser stands in the place of the 
drawer. The indorsee does not trust to the credit of 
the original drawer; he does not know whether such a 
person exists, or where he lives, or whether his name 
may have been forged. The indorser is his drawer, and 
the person to whom he originally trusted in case the 
drawee should not pay the money. We are, therefore, 
all of opinion that, to entitle the indorsee to bring an 
action against the indorser, upon failure of payment by 
the drawee, it is not necessary to make any demand on. 
or inquiry after, the first drawer." 

dine with him. From them he learned the usages of trade, and in return he 
took great pains in explaining to them the principles of jurisprudence by 
which they were to be guided. .Several of the»e gentlemen survived when 
I began to attend Guildhall as a student, and were designated and honored 
as " Lord Mansfield's jurymen." One in particular, I remember Mr. 
Edward Vaux, who always wore a cocked hat. and had almost as much 
authority as the Lord Chief Justice himself, 
m — 20. 



5o6 REIGN OF GEORGE II. [1756— 

He goes on to explain (which seems then to have been 
necessary), for the information of his brother judges, as 
well as of " the students," that the maker of a prom- 
issory note is in the same situation as the acceptor of a 
bill of exchange, and that in suing the indorser of the 
note it is necessary to allege and to prove a demand on 
the maker, fearing it might be supposed that the maker 
of a promissory note is not the principal debtor, and 
that, without any recourse against him, the indorser may 
at once be compelled to pay.' 

There is another contract of infinite importance to a 
maritime people, the incidents of which had received 
little illustration in England since the compilation of 
the " Laws of Oleron," in the reign of Richard I. I 
mean that between shipowners and merchants for the 
hiring of ships and carriage of goods. I shall notice 
only one of very many cases decided on this subject by 
Lord Mansfield. Till his time, the rights and liabilities 
of these parties had remained undecided upon the con- 
tingency, not unlikely to arise, of the ship being wrecked 
during the voyage, and the goods being saved and de- 
livered to the consignee at an intermediate port. Lord 
Mansfield settled that freight is due pro raid itineris — 
in proportion to the part of the voyage performed— 
showing that this is the rule which prevails among for- 
eign nations, and observing " Non erit alia lex Romse, 
alia Athenis ; alia nunc, alia posthac ; sed, et apud 
omnes gentes et omni tempore, una eademque lex 
obtinebit."' 

Lord Mansfield's familiarity with the general prin- 
ciples of ethics, which he had acquired by an attentive 
study of the philosophical works of Cicero, availed him 
on all occasions when he had to deteirmine on the proper 
construction and just fulfillment of contracts. The ques- 

' Heylyn v. Adamson, 2 Burr. 669. Lord Mansfield had likewise to de- 
termine that the indorser of a bill of exchange is discharged if he receives 
no notice of there having been a refusal to accept by the drawee {Bles- 
ard V. Herst, 6 Burr. 2670) ; and that reasonabU time for giving notice 
of the dishonor of a bill or note is to be determined by the Court as 
matter of law, and is not to be left to the jury as matter of fact, they 
being governed by the circumstances of each particular case. (Tindaly. 
Brown, I Term Rep. 167,) It seems strange to us how the world could 
go on when such questions, of hourly occurrence, were unsettled. 

' Luke v. Lyde, 2 Burrow, 883. 



1787J LORD MANSFIELD. 



307 



tion having arisen, for the first time, whether the seller 
of goods by auction, with the declared condition that 
they shall be sold to "the highest bidder," may employ 
a " puffer," — an agent to raise the price by bidding, — he 
thus expressed himself: 

" The matter in dispute is of small pecuniary value, 
but it involves principles of the highest importance to 
society. The basis pf all dealings ought to be good 
faith ; so more especially in these transactions, where 
the public are brought together upon a confidence that 
the articles set up to sale will be disposed of to the 
highest real bidder. That can never be the case if the 
owner may secretly enhance the price by a person em- 
ployed for that purpose. Yet tricks and practices of 
this kind daily increase, and grow so frequent that good 
men give in to the ways of the bad, and become dis- 
honest in their own defense. But the right now claimed 
was never before openly avowed. An owner of goods 
set up for sale at an auction would not bid in the room 
for himself. Speedily after such a bid the owner and 
the auctioneer would be the only persons present, and 
if it were discovered that there were puffers bidding, 
there would be the same dispersion. The practice is a 
fraud upon the sale, and upon the public. I cannot lis- 
ten to the argument that it is a common practice.' 
Gaming, stock-jobbing, and swindling are all very com- 
mon ; but the law forbids them all. The very nature of 
a sale by auction is that the goods shall go to the high- 
est real bidder ; the owner violates his contract with the 
public if, by himself or his agent, he bids upon his 
goods, and no subsequent bidder is bound to take the 
goods at the price at which they are knocked down to 
him."' 

Lord Mansfield gave earnest of his power to deal with 
questions of colonial law in deciding that certain Eng 

' It is very gravely urged, as their chief argument, by those who are foi 
peritiitting marriages between widowers and the sisters of their deceased 
wives, that such marriages are common ; although they might reason in the 
same manner for the legalizing of bigamy. 

' Bexwdlv. Christie, Cowp. 395. This rule was ratified by Lord Ken- 
yon in Howard v. Castle, 6 T. R. 642, and has ever since been acted upon 
But, by the conditions of sale, the owner may expressly reserve the power 
of making a bid by his agent. 



3o8 REIGN OF GEORGE II. [1756— 

lish statutes passed in the reigns of Richard II. and Ed- 
ward VI. do not extend to Jamaica, which had been 
conquered from Spain by Cromwell, and, having been 
abandoned by the Spanish inhabitants, had been re- 
settled by English emigrants:— 

" If Jamaica is considered as a conquest," said he, "it 
would retain its ancient laws till the conqueror thought 
fit to alter thf;m. If it be considered as a colony which 
we have planted ^as it ought to be, the old inhabitants 
naving left the island), then these statutes are positive 
regulations of police not adapted to the circumstances 
of a new colony, and therefore no part of that law of 
England which colonists are supposed from necessity to 
carry v/ith them to their new abode. No act of parlia- 
ment made after a colony is planted is construed to ex- 
tend to it without express words to that effect.'" 

But it was in the case of Campbell v. HaW that he 
fully developed the law upon this subject, and explicitly 
laid down the rules upon which our colonies have been 
governed ever since. 

The island of Grenada having been taken by us in the 
Seven Years' War, and ceded to us by the peace of 1762, 
the King, in a proclamation issued in 1763, of his own 
authority, imposed a tax of 4 per cent, on all exports; 
and the action was brought in the Court of King's 
Bench in England by the plaintiff, a British subject, who 
had subsequently purchased an estate and settled in the 
island, to recover back the sum he had been compelled 
to pay under this imposition for liberty to ship his 
sugars to be carried to London ; he maintaining that 
such a tax could only be imposed by the authority of 
Parliament. Lord Mansfield thereupon laid down the 
six following propositions : — 

" I. A country conquered by the British arms becomes 
a dominion of the King in right of his crown ; and 
therefore necessarily subject to the legislature — the 
parliament of Great Britain. 2. The conquered inhabi- 
tants, once received under the King's protection, become 
subjects, and are universally to be considered in that 
light ; not as enemies or aliens. 3. The articles of 
capitulation upon which the country surrendered, and 

' Rex V. I'au^han, 4 iju.r. 2+r)4 ' Cowp. 20+ 



^Sy.J LORD MANSFIELD. 309 

the articles of peace by which it is ceded, are sacred 
and inviolable according to their true intent and mean- 
ing. 4. The law of every dominion annexed to the 
crown equally affects all persons and all property within 
the limits thereof, and is the rule of decision for all 
questions which arise therein. Whoever purchases, 
lives, or sues there, puts himself under the law of the 
place. An Englishman in Ireland, Minorca, the Isle of 
r\Ian, or the plantations, has no privilege distinct from 
the natives. 5. The laws of a conquered country con- 
tinue in force until they are altered by the conqueror. 
The absurd exception as to Pagans mentioned in Calvin s 
case shows the universality and antiquity of the maxim ; 
in all probability it arose from the mad enthusiasm of 
the Crusades. 6. The last proposition is, that if the 
King (and when I say the King, I always mean the 
King without the consent of Parliament) has a power to 
alter the old and introduce new laws in a conquered 
country, this legislation being subordinate, that is, 
subordinate to his own authority in parliament. He 
cannot make any change contrary to fundamental 
principles ; he cannot exempt an individual in that 
dominion from the power of Parliament, or give him 
privileges exclusive of his other subjects." The learned 
Judge gives a clear opinion in favor of the legality of the 
proclamation : — " It is left by the constitution to the 
King's authority to accept or refuse a capitulation; if 
he refuse, and puts the inhabitants to the sword or ex- 
terminates them, all the lands belong to him ; if he re- 
ceives the inhabitants under his protection, and grants 
them their property, he has a power to fix such terms 
and conditions as he thinks proper. He is entrusted 
with making terms of peace ; he may yield up the con- 
quest, or retain it upon whatever terms he pleases. These 
powers no man ever disputed ; neither has it been 
hitherto controverted that the King may change part 
or whole of the law or political form of government of a 
conquered dominion." — He then draws an illustration 
from " the history of the conquests made by the Crown 
of England," reasoning in a manner which was highly 
distasteful to the " sister kingdom," and which no English 
judge would have ventured upon after the year 1782: 



j,u REIGN OF GEORGE II. [1756— 

' Ihc coi»ijuest and the alteration of the laws of Ireland 
h«ve been variously and learnedly discussed by lawyers 
and writers 01 great fame at different periods of time; 
but no man ever iaid the Crown could not. do it. The 
fact, in truth, afttr all the researches which have been 
made, comes out clearly to be as it is laid down by Chief 
Justice Vaughan,' vhat ' Ireland received the laws of 
Eng;land by the charters and commands of Henry II., 
King John, Henry 111. (he adds an) ' &c. ' to take in 
Edward I. and the subsequent kings ; and he shows 
clearly the mistake of imagining that the charters of the 
I2th of John were by the assent of a Parliament of 
Ireland. Whenever the first parliament was called in 
Ireland, that change was introduced without the in- 
terposition of the Parliament of England, and must there- 
fore be derived from the Crown." He proceeds with 
Wales, Berwick, Gascony, Calais, Gibraltar, Minorca, 
and New York, placing them all on the same footing, 
and showing the power of the King over them to be 
absolute till he had renounced it or modified it : — " It is 
not to be wondered at," he observed, " that an adjudged 
case in point has not been produced. No question was 
ever started before but that the King has a right to 
legislative authority oyer a conquered country ; it was 
never denied in Westminster Hall ; it never was ques- 
tioned in Parliament. Coke's report of the arguments 
and resolutions of the Judges in Calvin's case lays it 
down as clear: ' If a king comes to a kingdom by con- 
quest, he may change and alter the laws of that king- 
dom ; but if he comes to it by title and descent, he 
cannot, without the consent of parliament.' It is plain 
that he alludes to his own country, because he speaks 
of a country in which there is a parliament. In the year 
1722, the Assembly of Jamaica being refractory it was 
referred to Sir Philip Yorke and Sir Clement Wearge 
(great names) to know ' what could be done, if the As- 
sembly should obstinately continue to withhold the 
usual supplies?' They reported thus: 'If Jamaica is 
still to be considered as a conquered island, the King 
has a right to lay taxes upon the inhabitants ; but if it 
is to be considered in the same light as the other plant- 
' Vaugan's Rep. 292 



«787-J LORD MANSFIELD. 311 

ations. no taxes can be imposed on the inhabitants but 
by an assembly of the island, or by an act of parliament.' 
On the other side, no book, no saying, no surmise has 
been cited, and in our annals a doubt upon the subject 
has never been entertained." 

However, having so set up the prerogative of the 
Crown, he went on to show that in this instance it had 
been v/aived by a prior proclamation for the settling of 
the government of Grenada and other conquests, direct- 
ing the governor to convene general assemblies with 
power to make laws for the government of those colonies, 
agreeable, as near as might be, to the laws of England, 
and by a commission actually issued appointing a 
governor of Grenada, and authorizing him to summon 
an assembly to make laws as soon as the state and cir- 
cumstances of the island would permit. Such grants 
being irrevocable, although not acted upon, Grenada 
was pronounced to be in the same situation as Jamaica, 
so that the royal proclamation imposing the tax was 
void, and judgment was given for the plaintiff. 

A very interesting question, turning on general prin- 
ciples of jurisprudence, arose before Lord Mansfield, 
whether an action could be maintained in our courts by 
an alien enemy upon a ransom bill, or security for a 
■certain proportion of the value of a ship and cargo taken 
by a privateer and released ? As usual in such cases, he 
took the liberal side, saying, — 

" Ransom bills are to be encouraged as lessening the 
horrors of war. Justice ought to be administered to 
foreigners in our courts in the most extensive and 
■generous manner ; because the Crown cannot here inter- 
pose as in absolute monarchies to compel the subject to 
■do justice in an extra-judicial manner." ' 

Judgment was given for the plaintiff; and the same 
doctrine was laid down even in a case where the captur- 
ing ship with the ransom bill on board had been captured 
by an English cruiser, — Lord Mansfield saying, " It is 
sound policy as well as good morality to keep faith with 
an enemy in time of war: although the contract arose 
out of a state hostility, it is to be governed by the law 

' Comu V. Blackburn, Doug. 640. 



312 REIGN OF GEORGE II. \}1S^~ 

of nations and the eternal rules of justice." ' But ran- 
som ills are now forbidden by act of parliament." 

Although the r'^spective powers and privileges of 
those possessing, and being subject to, the authority of 
government at home had been well defined, at least 
since the Revolution of 1688, great doubts still existed 
with respect to cases of this sort arising in the domin- 
ions of the Crown beyond the seas. Lord Mansfield 
was of essential service in establishing the grand maxim 
that a British subject is under the protection of the con- 
stitution wherever the British flag is unfurled all over 
the globe. While Minorca was in our possession. Gen- 
eral Mostyn, the governor, in a very arbitrary manner, 
arrested Signor Fabrigas, a native of the island, and 
without any just cause confined him in a dungeon. The 
injured man followed the oppressor to England, after the 
expiration of his government, and brought an action of 
trespass and false imprisonment against him in the Court 
of Common Pleas. The jury found a verdict for the 
plaintiff, with ;£'3,ooo damages ; but a bill of exceptions 
was tendered to the direction of the presiding judge, 
who held that the action was maintainable,— and this 
came, by writ of error, before the Court of King's 
Bench. The case, on account of its extraordinary im- 
portance, was argued several times, two grand points 
being made for the defendant: — i. That the plaintiff 
could not sue in an English court of justice, having 
been born before the Peace of Utrecht, out of the alle- 
giance of the English Crown, when Minorca with the 
other Balearic Islands belonged to Spain ; and, 2. That 
no action could be maintained against the defendant in 
a British court of justice for any of his acts in Minorca, 
as, although he might be impeached in parliament, there 
was no remedy against him in a court of law for any- 
thing he had done in his capacity of governor." ' 

' Anthon v. Fisher, Doug. 649, n. 2 gj^t. 22 Geo. Ill c. 25. 

' Buller, then at the bar, concluded a vei-y able argument for the plaintift 
by observing that if the judgment against Governor Mostyn should be set 
aside, it would be said of him — 

" Hie est damnatus inani judicio ;" 

and of the Minorquins, 

" At tu, victrix provincia, ploras." 



i787-] LORD MANSFIELD 3,3 

Lord Mansfield : "It is impossible there ever should 
exist a doubt but that a subject born in Minorca has as 
good a right to appeal to the King's courts of justice at 
Westminster as any one who was born within the sound 
of Bow-bell ; and the objection made in this case, of its 
not being stated on the record that the plaintiff was born 
since the Peace of Utrecht, by which Minorca was ceded 
to this country, is untenable, for from the moment of 
the cession all the inhabitants of the island were under 
the allegiance, and were entitled to the protection, of 
the British Crown. But, then, we are told of the sacrcd- 
ness of the defendant's person ^s governor ; and it is in- 
sisted by way of distinction, that supposing the action 
\\\\\ lie for an injury of this kind committed by one indi- 
vidual against another in such a dominion beyond the 
seas, yet it shall not emphatically lie against the gov- 
ernor. In answer to which I say. that, for many reasons, 
if it did not lie against any other man, it shall most em- 
phatically lie agaJnst the governor. For it is truly said, 
that a governor is in the nature of a viceroy ; and there- 
fore locally, during his government, no civil or criminal 
action will lie against him, because, upon process, he 
would be liable to imprisonment. Emphatically, the 
governor must be tried in England, to see whether he 
has lav.-fully executed the authority delegated to him, or 
whether he has abused it in violation of the laws of 
England and of the trust reposed in him. The defend- 
ant, by being tried here, is not deprived of any means 
of proving his innocence. He might show that he only 
did what the public safety required, or that he acted as 
the Spanish governor might have done. The way of 
knowing foreign laws is by admitting them to be proved 
as facts, and the judge must assist the jury in finding 
what they really ordain. If the governor of a foreign 
possession is accountable in this country, he is account- 
able in this court. Complaints made to the King and 
Council tend to remove the governor ; but, when he has 
ceased to be governor, they have no jurisdiction to 
make reparation by giving damages, or to punish him in 
any shape for any wrong which he may have committed. 
The monstrous proposition that a governor acting by 
virtue of letters patent under the great seal is account- 



314 REIGN OF GEORGE II. [i7S6— 

able only to God and his own conscience, that he is ab- 
solutely despotic, and can despoil those under his rule 
both of their liberty and property with impunity, is ab- 
horrent to the principles of natural justice, and is con- 
trary to the law of England, which says to all the King's 
subjects 'whensoever or wheresoever you are wronged, 
you shall have a remedy.' " — Judgment affirmed.' 

But Lord Mansfield said, "The true maxim is, ' Boni 
judicis ampliare justitiam,' not ' ampliare jurisdic- 
tionem.' " He therefore carefully considered to what 
various tribunals the constitution assigned the determ- 
ination of various forensic questions ; and, not being mis- 
led by love of popularity or love of power while delud- 
ing himself with the notion that he only wished to vin- 
dicate the rights of all suitors who came before him, he 
did not endeavor to encroach upon the jurisdiction 
either of the two Houses of Parliament or of the infe- 
rior courts. A tempting occasion arose of securing to 
himself the acclamations of the mob as " a truly British 
judge" when several actions came for trial before him, 
brought by sailors on board a merchant ship which had 
been captured by a ietter of marque as a prize, but lib- 
erated by the Court of Admiralty, the plaintiffs contend 
ing that the captain of the letter of marque was liable 
to be sued by them in a court of law for the false impris- 
onment which they had undergone. But he clearly held 
that the actions could not be maintained, as the question 
of " prize or no prize," was properly triable only before 
the Court of Admiralty, and it belonged to that court 
alone, upon the unjust capture of a ship as prize, to 
award damages and costs against the captor to all who 
have suffered by his wrongful act. 

" This," said he, " is a new attempt, which if it suc- 
ceeded, would betray the British navy. If an action 
it law should lie by the owners and every man on board 
the ship taken as prize against the'captor and every man 
on board his ship, the sea would be safe for the trade of 
our enemies, however great our naval superiority. I am 
bound to suppose that the Court of Admiralty has 
done ample justice, according to the power it pos- 

' Cowper, lOI. 



1787.] LORD MANSFIELD. 



31S 



sessed and the duty imposed upon it, between all these 
parties.'" 

So, when a mandamus was applied for to compel the 
benchers of Gray's Inn to call a person to the bar, in- 
stead of wishing to convert this writ into an instrument 
by which the whole scope of the executive government 
might be brought within the cognizance of the judges 
of the King's Bench, and they might issue orders to the 
King himself and all in authority under him, he very , 
properly refused to interfere, saying, " The power of 
admitting persons to practice as barristers is vested in 
the benchers of the Inns of Courts, subject to visitorial 
power; and if the applicant is wronged, he must apply 
elsewhere for a remedy."" 

I ought, to mention, however, that, misled by an old 
precedent, he fell into a mistake in holding that an ac- 
tion at law could be maintained to to recover a leg- 
acy. 

Precedent and Principle often had a hard struggle 
which should lay hold of Lord Mansfield ; and he used 
to say that he ought to be drawn placed between them, 
like Garrick between Tragedy and COMEDY. Though he 
might err, like all other mortals, where there was no fixed 
rule of law \rhich could not be shaken without danger, 
he was guided by a manly sense of what was proper, and 
he showed that he considered " law a rational science, 
founded on the basis of moral rectitude, but modified 
by habit and authority." Thus, a notion had long pre- 
vailed that if a ship was cast away, and no man or animal 
came ashore alive, the wreck belonged to the King or 
his grantee, because the statute 3 Edward I. c. 4, enacts 
that " it shall not be a wreck if a man, dog, or cat escape 
alive." A lord of a manor having brought an action for 

' 2 Evans, 149 ; Lindo v. Rodney, Doug. 613. 

5 Rex V. Benchers of Gray's Inn, Doug. 353. — I hope that the system which 
has prevailed satisfactorily may long continue ; but if ever the Inns of 
Court should make arbitrary rules for the government of their members, and 
sHould enter into a contest for students, by abridging the period of study 
and relaxing the regulations for the exclusion of improper candidates, it will 
tie necessary for the legislature to interpose, and to establish a uniform and 
efficient discipline by way of preparation for a profession of such importance 
to the community. 

' Atkins V. Hill, Cowp. 284 ; Hamkes v. Saunders, Cowp. 289 ; Detks r. 
Struti, 5 Term Rep. 690, 



3i6 REIGN OF GEORGE II. [1756— 

property wrecked when all on board had perished, dogs 
and cats included, but the property was clearly identified 
by the original owners, he said, — 

" The doctrine contended for is contrary to the prin- 
ciples of law, justice and humanity. The very idea of it 
is shocking. The coming to shore of a dog or a cat alive 
can be no better proof than if they should come ashore 
dead. The escaping alive makes no sort of difference. 
If the owner of the dog, or cat, or other animal, was 
known, the presumption of the goods belonging to the 
same person would be equally strong whether the animal 
breathed or not. It was only when no owner could be 
found that, by common law, the goods belonged to the 
King ; and the statute is only declaratory of the com- 
mon law. It does not enact that, if neither man, cat, nor 
dog escaped alive, the wreck shall belong to the King. 
The owner was only required to show that the property 
was \nsper certa indict et sigiia, and animals were men- 
tioned by way of instance. Anciently, goods sent by 
sea probably were not distinguished by marks and num- 
bers so accurately as at the present day, and then a dog 
or cat might afford a presumption towards ascertaining 
the owner of the goods. The goods in question are 
proved to have been the property of the defendant ; 
and, after this attempt to seize them, the plaintiff may 
betake himself to the trade of a wrecker on the Cornish 
coast." — Judgment for the defendant .'■ 

Lord Mansfield first established the grand doctrine 
that the air of England is too pure to be breathed by a 
slave. James Somersett, a negro, being in a state of 
slavery in Africa, was carried from thence to Jamaica, 
where, by law, slavery was permitted,- and there sold as 
a slave. Mr. Steuart, his master, brought him over to 
Engb.nd, intending soon to return with him to Jamaica. 
Wliile confined on board a ship in the river Thames, 
that he might be carried back, he claimed his freedom, 
and being brought up under a writ of habeas corpus, the 
court had to determine whether he was entitled to it. 

On behalf of his master it was argued, that villeinage, 
or slavery, had been permitted in England by the com.- 
' Haviilton v. Davis, 5 Burr. 2732, 



I7S7-J LORD MANSFIELD. 317 

■mon law ; that no statute had ever passed to abolish this 
status; that although de facto v\\\&\x\z.'g& by birth had 
ceased, a man might still make himself a villein by 
acknowledgment in a court of record ; that at any rate 
the rights of these parties were to be decided according 
to the law of Jamaica, where they were domiciled ; and 
as there could not be the smallest doubt that the voyage 
to England did not amount to emancipation, so that if 
Somersett were again in Jamacia he would still be con- 
sidered the property of his master, the relation between 
them could not be considered suspended in England. 
Various instances were stated in which negro slaves, 
brought over here from the West Indies, had been caried 
back again against their will by their masters ; and dicta 
of Lord Talbot and Lord Hardwicke were cited, to th<^ 
effect that this might lawfully be done. 

Lord Mansfield : " I am quite clear that the act of de- 
taining a man as a slave can only be justified by the law 
of the country where the act is done, although contracts 
are to be construed according to the law of the country 
where they are entered into, and the succession to per- 
sonal property according to the law of the country 
where the deceased owner was domiciled at the time of 
his death. Then what ground is there for saying 
that the status of slavery is now recognized by the 
law of England ? that trover will lie for a slave ? 
that a slave-market may be established in Smith- 
field ? I care not for the supposed dicta of judges, how- 
ever eminent, if they be contrary to all principle. The 
dicta cited were probably misunderstood ; and, at all 
■events, they are to be disregarded. Villeinage, when it 
did exist in this country, differed in many particulars 
from West India slavery. The lord never could have 
thrown his villein, whether regardant or in gross, into 
chains, sent him to the West Indies, and sold him there 
to work in a mine or in a cane-field. At any rate, vil- 
leinage has ceased in England, and it cannot be revived. 
The air of England has long been too pure for a slave, 
and every man is free who breathes it. Every man who 
comes into England is entitled to the protection of 
English law, whatever oppression he may heretofore 



3iJ 



REIGN OF GEORGE II. [i75<5— 



have suffered, and whatever may be the color of his 

skin : 

' Quamvis ille niger quamvis tu Candidas esses.' 

Let the negro be disch;.rged."" 

But Lord Mansfield gives a clear opinion in favor of 
the legality of pressing mariners for the royal navy, say- 
ing that "the practice was not only essential for the 
safety of the state, but had existed from the remotest 
antiquity, was supported by judicial decisions, and was 
even incidentally recognized by acts of parliament." He 
observed, that "a pressed sailor is not a slave ; no com- 
pulsion can be put upon him except to serve his coun- 
try; and, while doing so, he is entitled to claim all the 
rights of an Englishman."" 

Happily the law is at la^t settled by the legislature 
upon the footing for which I had long contended, thav 
" no action can be maintained on a wager ;" but it is 
still curious to see how such a judge as Lord Mansfield 
disposed of cases of this sort, when the general rule, sub- 
ject to exceptions, was, that a wager might be enforced 
like any other contract. A party, bringing by appeal to 
the House of Lords a decree in Chancery which had 
been pronounced against him, laid a wager that the de- 
cree would be affirmed. The decree being reversed, he 
refused to pay the wager ; and an action being brought 
against him, he argued — i. It is essential to the validity 
of a wager that the event be contingent, but the law of 
the country must be taken to be clear, evident, and cer- 
tain, insomuch that the reversal of this decree was af 
little doubtful as that a stone will fall to the earth b> 
the force of gravitation. 2. At all events, a wager re- 
specting a judicial proceeding is illegal and void, as con 
trary to public policy. 

Lord Mansfield : " This contract is equal between the 
parties ; they have each of them equal knowledge and 
equal ignorance ; and it is concerning an event which — 
reasoning by the rules of predestination — is, to be sure, 
so far certain, as it must be as it should afterwards hap- 
pen to be. Touching the certainty of the law, it would 
be very hard upon the profession if it were so certain 
that everybody knows it; the misfortune is that it is so 

' See 20 St. Tr. 1-82 « Rex v. Tubbs, Cowp. 512. 



17S7.] LORD MANSFIELD. 319 

uncertain, that much money must be paid before we can 
iind it out, even in the court of last resort. Then I can- 
not say that this wager is against sound public policy. 
A parson, who wanted to be made a bishop, conversing 
with the Prime Minister respecting a see then vacant, 
said, ' I will bet you so much (naming a good round 
sum) that I have not the bishopric' This was a mere 
disguise to purchase it, and the contract manifestly cor- 
rupt and void. So, if the present wager had been made 
with one of the judges or one of the peers who were to 
give an opinion on the validity of the decree, it would 
be construed as a bribe. But this transaction, as far as I 
can see, contains nothing immoral, or contrary to jus- 
tice, and I do not think that we can prevent the plain- 
tiff from recovering the nvoney he has won." — Judgment 
for the plaintiff.^ 

Mr. Codrington and Mr. Pigott, two licentious young 
men, — celebrated characters on the turf, — being heirs to 
great estates, agreed to wager a large sum upon the sur- 
vivorship of their respective fathers, or, as it was termed 
"to run their fathers." The former, however, feeling 
some little remorse, Lord March, afterwards Duke of 
Queensbury," agreed to stand' in his place, and mutual 
notes v/ere given for the payment of the sum staked. 
It turned out that Mr. Pigott's father was at that time 
actually dead, of which neither party had any knowledge 
or suspicion. Lord March now brought an action on 
the wager, which the counsel for the defendant insisted 
was illegal and void. 

Lord Mansfield : "The question is, what the parties 
really meant ? The material contingency was, which of 
the two young heirs should come to his father's estate 
first ? It was not known that the father of either of 
them was then dead. All circumstances show that, if 
this possibility had been thought of, it would not have 
made any difference in the bet, and there is no reason to 
presume that they would have excepted it. The inten- 
tion was, that he who came first to his estate should pay 

^ Jones \. Randall, Co^^.ZT. . u 1 

« Whom I remember when he was called " Old Q., sitting in his balcony 

in Piccadilly, looking through an opera-glass at the ladies as they passed 

by. 



320 REIGN OF GEORGE II. [1756— 

the sum of money to the other, who stood in need of it. 
That the event had happened was in the contemplation 
of neither party. The contract was fair ; and, by the 
just interpretation of it, the plaintiff is entitled to re- 
cover.'" 

But he held that a wager between two voters, respect- 
ing the event of an election for members of parliament, 
was illegal : — 

Lord Mansfield : " Whether this particular wager had 
any other motive than the spirit of gaming and the zeal 
of both parties, I do not know ; but our determination 
must turn on the species and nature of the contract ; and 
if that is, in the eye of the law, corrupt, and against the 
fundamental principles of the constitution, it cannot be 
supported by a court of justice. The law declares that 
the elector of members of parliament shall be free from 
pecuniary influence in giving his vote. This is a wager, 
in the form of it, between two voters, and the event is 
the success of one of the rival candidates. The success 
of either candidate is material ; and, from the moment 
the wager is laid, both parties are fettered. It is, there- 
fore, laying them under a pecuniary influence. What 
is so easy as, in a case where a bribe is intended, to lay 
•a wager? It is difficult to prove that the wager makes 
the elector give a contrary vote to what he would other- 
wise have given, but it has a tendency to influence the 
mind. Therefore, in the case respecting a decision of 
the House of Lords, if the wager had been laid with a 
lord of parliament or a judge, it would have been void 
from its tendency, without considering whether a bribe 
M-as really intended or not."— jfiidgment for the defendant ' 

I shall close this head with the celebrated wager upon 
the sex of the CHEVALIER D'EON. He had served as a 
military officer, had acted as a diplomatist, and had 
fought duels, but his appearance was very effeminate ; 
and after he had resided some years in England, fre- 
quenting race-courses and gaming-houses in male attire, 
Mr. Dacosta wagered a large sum with Mr. Jones that 
the supposed Chevalier was a woman, and brought an 
acti-n to recover the amount. The case coming on 

' Earl of March v. ri.;olt. 5 Burr. 2S'04. 
''Allen V. ffdiirn, i T^r.n Rep. 57. 



I7S7-] LORD MANSFIELD. 321 

before Lord Mansfield at nisi prius, he allowed the trial 
to proceed, and, after many witnesses had been ex- 
amined, the jury found a verdict for the plaintiff. But 
the case was subsequently brought before the whole 
court, — when, the verdict being admitted to be accord- 
ing to the fact, the question was learnedly discussed 
whether the action was in point of law maintainable ? 

Lord Mansfield: "The trial of this cause made a 
great noise all over Europe ; and, from the comments 
made upon it, and farther consideration, I am sorry that 
I did not at once yield to the consideration that it led 
to indecent evidence, and was injurious to the feelings 
and interests of a third person. I am sorry, likewise, 
that the witnesses subpoenaed had not been told they 
might refuse to give evidence if they pleased. But no 
objection to their being examined was made by the 
counsel for the defendant ; nor did any of themselves 
apply for protection, or hesitate to answer. I have since 
heard that many of them had been confidentially em- 
ployed by the person whose sex was in controversy, in 
the way of their profession or business. That any two 
men, by laying a wager concerning a third party, may 
compel his physicians, servants, an f*. relations to disclose 
what they know about his person, would have been an 
alarming proposition. Mere indecency of evidence is no 
objection to its being received when it is necessary to 
the decision of a civil right or criminal liability. Upon 
this ground we think that Mr. Justice Burnet was wrong 
in refusing to try the case before him where a young 
lady brought an action of slander for saying that she 
had a defect in her person which unfitted her for 
marriage, and the defendant alleged in his plea that 
she had such a defect ; for there, if the statement was 
false, the plaintiff had received a grievous injury, for 
which she was entitled to exemplary damages ; and if it 
was true, the defendant ought to have been freed from 
the charge of a malicious lie, however he might still be 
liable to censure for indelicately proclaiming the truth. 
But if it had been merely an action on a wager whether 
the young lady had such a defect, it would have been 
nearly the present case, and I think the judge would 
have been well justified in refusing to proceed with the 
III — 21. 



322 REIGN OF GEORGE II. [1756— 

trial ; or, declaring that the supposed contract was void, 
in instantly nonsuiting the plaintiff. Indifferent wagers 
upon indifferent matters, without interest to either of 
the parties, are certainly allowed by the law of this 
country. Whether it would not have been better to 
treat all wagers as gaming contracts, and to have held 
them void, is now too late to discuss ; but there are 
exceptions to the rule, on the ground of injury to the 
community or to individuals. Suppose a wager between 
two men, that one of them, or that a third person, shall 
do some criminal act. Suppose I lay you a wager that 
you do not beat such a person ; you lay that you will. 
Suppose a wager that the act shall be repeated in Covent 
Garden, for which Sir Charles Sedley was prosecuted. 
Would a court of justice try any of these wagers, tending 
to crime and immorality? We are told that the ob- 
jection is not supported by adjudged cases ; but I say 
you offend, you misbehave, by laying such a wager. 
Upon such a wager would a court of justice try whether 
a married woman has committed adultery, or an un- 
married woman has had a child ? The party to, be affected 
would have a right to say, ' How dare you bring my 
name in question ? ' If a husband complain of adultery, 
he shall be allowed to try it, for he is a party interested 
and aggrieved. So, upon a right to the inheritance of a 
freehold estate, it may be necessary to try whether the 
claimant's mother was married before his birth. But 
third persons shall not, by laying a wager wantonly, 
expose others to odium or ridicule. — We come to the 
present case. Here is a person who represents himself 
to the world as a man, is stated on the record to be 
Monsieur le Chevalier d'Eon, has acted in that character 
in a variety of capacities, and has his reasons and ad- 
vantages in so appearing. Shall two indifferent people, 
by a wager between themselves, try whether he is a cheat 
and impostor, and be allowed to subpoena all his intimate 
friends and confidential attendants to give evidence that 
will expose him all over Europe ? Such an inquiry is a 
disgrace to judicature. If the Chevalier had applied to 
the Court and said, ' Here is a villainous wagef laid to 
injure me; I, as a stranger, whose interest it affects, 
pray you to stop it,' we should instantly have done so. 



1787 ] LORD MANSFIELD. 323 

We have no authority to declare all wagers illegal ; a 
wager whether the next child shall be a boy or a girl 
hurts no one. But are we to lay down doctrine which 
would give validity to a wager whether a young women 
has a mark upon a particular part of her body, and 
authorize the calling of her chambermaid to prove it? 
The present wager, being indecent in itself, and mani- 
festing a gross injury to a third person, is not to be 
endured." — Judgment for the defendant ^ 

Lord Mansfield most usefully asserted the power of 
the common law to punish those who are guilty of of- 
fenses contra bonos mores, although there may not have 
been any prior prosecution for the specific offense. An 
application was made against Sir Thomas Blake Delaval, 
one Bates, a music master, and others, for a conspiracy 
to corrupt the chastity of a young female. This person, 
at the age of fifteen, was bound apprentice to Bates, to 
be instructed in the musical art ; and being possessed of 
great beauty as well as musical genius, she attracted the 
notice of Sir Francis, then a fashionable libertine of 
much notoriety. She was assigned over to him for the 
sum of ;^2CX), which Bates received by the hands of his 
tailor, and then she was indentured to him to learn 
music, and she was made to covenant that she would 
live with him as his apprentice, and that she would not 
quit his appartment. Having thus got possession of her, 
he paraded her about in public places as his mistress. 
The counsel for the defendants contended that, however 
immoral their conduct had been, they were not guilty of 
any offense cognizable in a criminal court. 

Lord Mansfield : " It is true that many offenses of the 

' Dacosta v. Jones, Cowp. 729. Although the verdict was set aside on 
legal grounds, it was allowed to settle many other bets which had been laid 
on the same question. The Annual Register for 1765, p. 167, says, "By 
this decision, no less a sum than ;^75,ooo will remain in this country which 
would otherwise have been transmitted to Paris. The Chevalier has left 
England, declaring that she had no interest whatever in the policies opened 
on her sex." The Chevalier, then assuming female attire, remained in 
France, supported by a pension from the French government for having 
been long a spy of Louis XV., till the breaking out of the Revolution in 
1790, He then came to England, and, being in great distress, lived with 
a lady of reputation as her companion ; but, dying in the year 18 10, wa.< 
found, on a post-mortem examination, to be indeed of the sex which he had 
originally claimed, and, in all respects, pe'fectly formed. 



324 REIGN OF GEORGE II. \}n^— 

incontinent kind are to be considered as siiis only, and 
must be left to the conscience of the offender, or penance 
to be imposed by the Ecclesiastical Court pro salute 
animce. But this court has the superintendence of of- 
fenses centra bonos mores, and a conspiracy to corrupt the 
innocence of a young female is an offense which may be 
made the subject of an information or indictment, and 
which we can visit with fine and imprisonment or in- 
famous punishment. If Sir Francis Delaval had merely 
seduced this unfortunate girl by his own solicitations, 
he might only have been liable to an action for damages 
at the suit of her father ; but entering into a wicked 
bargain by which he has purchased her from another, 
the two must be considered as conspiring to ruin her, and 
they are both guilty of a misdemeanor. Let the rule 
for filing a criminal information against them be abso- 
lute.'" 

Lord Mansfield acquired great popularity by this 
declar^ation of the law, which gave a salutary check to 
the abominable practices of the plotters against female 
innocence ; but he incurred much obloquy by his direc- 
tion to the jury in the great crim. con. cause of the Earl 
of Grosvenor v. His Royal Highness the Duke of Cumber- 
land. The plaintiff's counsel having urged the exalted 
rank of the defendant as a ground for heavy damages, 
the Judge said that " the rank of the defendant was 
wholly immaterial ; but they should consider the cause 
as if it were between A. and B. ; and that they were 
merely to give the plaintiff a compensation for the loss 
of his wife's society — this loss not being lessened or en- 
hanced by the consideration whether the wrong-doer 
was a peasant or a prince." We may safely acquit him 
of all corruption and sycophancy in this direction ; and 
it is somewhat countenanced by the converse proposi- 
tion of an eminent judge in a similar action which a 
nobleman brought against his coachman, and in which 
the jury gave £\o,OQO damages. But it is quite at 

' IloUiday, 214. I wish that those who, for several years past, have been 
bringing forward bills "for the protection of females" would be cuntented 
with the law as laid down here^anil abandon their well-meant but iujucli- 
cious attenipts. Wliere there is a conspiracy, the law is already strong 
enough to puai.-.h : and a simple departure from the rules of cli.-islity cau- 
U'jt be inatic liie suhiecl of LTuninal lefjislation. 



1787.J LORD MANSFIELD. 



325 



variance with the usual evidence in these cases that the 
defendant is a man of large property, and in reality the 
disgrace and sufferings of the plaintiff may be much 
greater from the consideration that the destroyer of his 
domestic happiness is nearly related to the throne.' 

On the great question of literary property, on which, 
for the first time after Lord Mansfield presided in the 
Court of King's Bench, the judges were divided, he par- 
ticularly distinguished himself, contending on (I think) 
unanswerable grounds that, by the common law, an 
author, after printing and publishing his word, is entitled 
to prevent others from reprinting and publishing it 
without his leave, — which would amount to a perpetual 
copyright in him and his family. The three puisnies 
began ; WiLLES and ASTON pro and YateS contrh. 

Lord Mansfield : "This is the first instance of a final 
difference in this Court since I sat here. Every order, 
rule, judgment, and opinion has hitherto been unani- 
mous. That unanimity never could have happened if 

' 2 Evans, 358. Junius took good advantage of this direction, in his 
Letter to Lord Mansfield: — "An action for criminr' i,onversation being 
brought by a peer against a prince of the blood, yotk .vc.c daring enough to 
tell the juiy that, in fixing the damages, they were tj pay no regard to the 
quality or fortune of the parties ; that it was a trial between A. and B. ; 
that they were to consider the offense in a moral light only, and give no 
greater damages to a peer of the realm than to the meanest mechanic. I 
shall not attempt to refute a doctine which, if it was meant for law, carries 
falsehood and absurdity on the face of it, but, if it was meant for a declara- 
tion of your political creed, is clear and consistent. Under an arbitrary 
government, all ranks and distinctions are confounded. The honor of a 
nobleman is no more considered than the reputation of a peasant ; for, with 
different liveries, they are equally slaves." The bad law of the Judge, 
however, was soon forgotten amid the ridicule excited by the correspond- 
ence of the lovers. " Their letters," says Horace Walpole, " were produced 
at the trial, and never was the public regaled with a collection of greatei 
folly ! Yet to the lady's honor be it said, that, bating a few oaths, whick 
sounded more masculine than tender, the advantage in grammar, spelling 
and style was all in her favor. His Royal Highness's diction and learninj 
scarce excelled that of a cabin boy, as those elegant epistles existing at pres 
ent may testify. Sorae, being penned on board of ship, were literal verifi 
cations of Lord Dorset's ballad. — 

" ' To you fair ladies now on land. 

We men at sea do write ; 
But first would have you understand 

How hard 'tis to indite.' " 

(Mem. Geo. III., iii. 104.) One of these effusions thus began :— 
" Here I am all by myself at see J" 



326 REIGN OF GEORGE II. [1756— 

we did not, among ourselves, communicate our senti- 
ments with great freedom ; if we did not form our con- 
clusions without any prepossession to first thoughts ; if 
we were not always "open to conviction, and ready to 
yield to each other's reasons. We have all equally en- 
deavored at that unanimity upon this occasion ; we have 
talked the matter over several times ; I have communi- 
cated my thoughts in writing, and I have read the three 
arguments which have just been delivered. In short we 
have equally tried to convince or be convinced. But in 
vain. We continue to differ, and, whoever is right, each 
is bound to abide by and deliver that opinion which he 
he has deliberately formed." 

I can only introduce a few of the observations by 
which he so ably availed himself of the concession, that 
the author, before publication by himself, could prevent 
its being published by another; and met the meta- 
physical reasoning, that there can be no property in that 
which cannot be perceived by the senses : — 

" It has all along been expressly admitted, that by the 
common law an author is entitled to the copy' of his own 
work until it has been once printed and published by his 
authority. The property in the copy thus limited is 
equally an incorporeal right as much as that contended 
for, to present a set of ideas communicated in a set of 
words by conventional characters. It is equally de- 
tached from the manuscript, or any other physical exist- 
ence whatsoever. The property, whether limited or ex- 
tended, is equally incapable of being violated by crime 
indictable, and is only violated by another's printing 
without the author's consent, which is a civil injury. 
The remedy is the same, by an action on the case for 
damages, or a bill in equity for specific relief. No action 
of detinue, trover, or trespass vi et armis, lies ; for the 
Rimited property is equally a property in notion, and has 
«o corporeal, tangible substance. No disposition, no 
transfer of the paper upon which the composition is 
written, marked or impressed, though it gives the power 
to print and publish, can be construed a conveyance of 

' He had explained that he used " copy " in the technical sense in which it 
had been used for ages, to signify the incorporeal right to the sale, print- 
ing, and publishing of somewhat intellectual, communicated by letters. 



€787.] LORD MANSFIELD. 327 

the right to do so, without the author's express consent, 
much less against his will. Dean Swift was certainly 
proprietor of the paper upon which Pope's letters were 
written. I know that Mr. Pope had neither the original 
■nor any transcript of them, and that he had only a very 
imperfect memory of their contents. Yet the Lord 
Chancelloi held that he was entitled to stop the publica- 
tion of them by a printer into whose hands they had 
fallen. If the copy belongs to an author after publica- 
tion, it certainly belonged to him before. But if it does 
not belong to him after, where is the common law which 
says there is such a property before ? All the meta- 
physical subtleties from the nature of the thing may be 
equally objected. It is incorporeal. It relates to ideas 
detached from any physical existence. It has none of 
the indicia of property. The same string of questions 
may be asked upon the right before publication. Is it 
real or personal? Does it go to the heir. or executor? 
Is it assignable or not ? Can it be forfeited ? Can it be 
taken in execution ? Can it be vested in the assignees 
of a bankrupt ? The common law as to copy before pub- 
lication cannot be founded upon custom ; as, till the in- 
junction in 1732 against Curl publishing Mr. Pope's let- 
ters, the case of piracy before publication never existed ; 
it never was put or supposed. From what source, then, 
is the common law drawn which is admitted to be so 
, ^lear in respect to the copy before publication ? We are 
told, because it is just that an author should reap the 
pecuniary profits of his own ingenuity and labor ; it is 
just that another should not use his name without his 
consent ; it is fit that he should judge when to publish, 
■ox whether he will ever publish ; it is fit that he should 
not only choose the time but the manner of the publica- 
tion — how many volumes — what number of copies — 
what paper — what print ; it is fit he should choose to 
whose care he will trust the accuracy of the impression, 
and to whose honesty,— that interpolations may not be 
foisted in. These considerations, I allow, are sufficient 
to show that it is agreeable to the principles of right 
and wrong, the fitness of things, convenience, and policy, 
and therefore to the common law, to protect the copy 
before publication. But the same considerations hold 



328 REIGN OF GEORGE II. [1756— 

with equal strength after the author has published. He- 
can reap no pecuniary profit if the next day his work 
may be pirated upon worse paper, and in worse print, 
and at a lower price. The author may not only be de- 
prived of any profit, but be ruined by the expense he 
has incurred. He is no more master of the use of his- 
own name. He has no control over the correctness of 
his own work. He cannot prevent additions. He can- 
not retract errors. Any one may print, pirate, perpet- 
uate, aggravate his imperfections, and may propagate 
sentiments under his name which he never entertained, 
or, upon more deliberation, disapproves, repents, and is 
ashamed of. For these reasons it seems to me equally 
just and fit to protect the copy after publication. The 
general consent of this kingdom for ages is on the affirm- 
ative side. The legislative authority has taken it for 
granted, and interposed penalties to give it additional 
protection for a time. The single opinion of such a man 
as Milton, speaking after much consideration on the very 
point, is much stronger than any fanciful analogies from 
gathering acorns, or acquiring a right to a field by pos- 
session, where the writers referred to, instead of having 
this question in contemplation, speak of an imaginary 
state of nature before the invention of letters." 

The pure common-law right was never finally decided ; 
for the case being brought by writ of error before the 
House of Lords, their Lordships, by the advice of Lord 
Camden, determined that " whatever the right of the 
author might be at common law, it was now limited ta 
the period specified in the statutes passed for his protec- 
tion, during which specific remedies are afforded to him ;" 
and, although I entirely assent to the reasoning that no 
right to print and publish a book is acquired by purchas- 
ing a printed copy of it, any more than by a present from, 
the author of a MS. copy before publication, I admit 
that this is a fit subject for legislative enactment. Per- 
haps there could not be a better arrangement for authors, 
and for the public, than by the recent statute, which 
give« an efficient monopoly during the author's life and. 
a iPasonable time afterwards for the benefit of his family^ 
and secures the free circulation of the work in all time 
thereafter. 



I787-J LORD MANSFIELD. 



329 



In looking through the reports of Lord Mansfield's 
decisions, it is wonderful to observe how many of them 
turn upon the law of evidence ; but we must remember 
that " he found it of brick, and that he left it of marble." 
It was indispensably necessary for him in this depart- 
ment to overrule many dicta to be found in the old Re- 
porters ; and, early in his career, he said, " We do not 
sit here to take our rules of evidence from Siderfin and 
Kcble." The whole of it was "judge-made law," and 
much of it made by judges of very narrow understand- 
ings, who held, among other things, that Jews, Turks, 
and infidels are not to be examined as witnesses because 
they cannot kiss the Holy Gospels." Considering that, 
before juries, the verdict depended upon the impression 
made upon the minds of unlearned men, he was bound 
to exclude all evidence which was more likely to mislead 
than to assist them ; but still he leaned against the old 
maxims by which evidence was rejected instead of being 
sifted, and he wished that objections should be pointed 
against the credit rather than against the competency of 
witnesses. He, on one occasion, fell into a considerable 
blunder, by admitting witnesses to contradict a written 
agreement signed by the parties ;' but the great bulk of 
his decisions respecting the admission or rejection of 
evidence have been received with approbation, and to 
them chiefly we are indebted for our established rules 
upon this important subject. These place the English 
law for once above the Roman Civil Law itself, which, 
notwithstanding its general exquisite good sense, is here 
arbitrary and capricious. Lord Mansfield obtained the 
highest renown in this department by his committing for 
perjury the attesting witnesses to a will who falsely swore 
that they never saw it executed by the testator, and per- 
mitting the will to be established by the testimony of 
other witnesses who were acquainted with the testator's 
handwriting.' 

I must now mention the case oi Perrin v. Blake, which 
divided the profession of the law into bitter factions for 
many years, and which is still famous in the traditions 
of Westminster Hall. I am sorry to say that in the 
course of the discussions which arose upon it Lord Mans- 

' Meres v. Ansell, 3 Wils. 275. " See 2 Evans, 300-359. 



330 REIGN OF GEORGE II. L1756— 

field got into a very awkward scrape, from which he wa= 
not able to extricate himself with credit ; and that it 
afforded his enemies plausible grounds for charging him 
with rashness, obstinacy, and disingenuousness. The 
following statement, which necessarily enters into some 
of the subleties of English conveyancing, had better be 
passed over by non-learned readers ; but without it this 
memoir would sadly disappoint many of my legal breth- 
ren, who, when they first see "THE LIVES OF THE 
Chief Justices," will eagerly turn to discover which 
side the author takes in the great '^ Perrin^oblakeian con- 
troversy." A testator, seized in fee of lands, duly made 
_liis will in the following form : — 

" It is my intent and meaning, that none of my chil- 
dren should sell or dispose of my estate for longer term 
than his life ; and to that intent I give, devise, and be- 
queath all the rest and residue of my estate to my son 
John, and any son my wife may be enceinte of at my 
death, for and during the term of their natural lives; the 
remainder to my brother-in-law Isaac Gale and his heirs, 
for and during the natural lives of my said son John and 
the said infant; the remainder to the heirs of the bodies 
of my said son John and the said infant, lawfully be- 
gotten, or to be begotten ; the remainder to my daugh- 
ters for and during the term of their natural lives, 
equally to be divided between them ; the remainder to 
my said brother-in-law Isaac Gale, during the natural 
lives of my said daughters respectively ; the remainder 
to the heirs of the bodies of my said daughters, equally 
to be divided between them ; and I do declare it to be 
my will and pleasure, that the share or part of any of my 
said daughters that shall happen to die shall immedi- 
ately vestln the heirs of her body in manner aforesaid." 
The wife was not enceinte ; and John, the son, insisting 
that under the will he was tenant in tail, suffered a re- 
covery, and alienated. On his death the person next in 
remainder, contending that John was only tenant for 
life, brought an action to recover the lands ; and the 
great question was, whether he took an estate for life or 
in tail ? According to the celebrated rule in Shelley's 
Case, established in the reign of Elizabeth on feudal 
principles and on prior authorities, " where an estate of 



57S7-] LORD MANSFIELD. 351 

freehcld is given to an ancestor, and in the s^me gift or 
conveyance an estate is given either mediately or imme- 
diately to his heirs, these are construed words of limita- 
tion, not of purchase, and he himself takes an estate 
tail."' Now by this will there was an estate for life lim- 
ited to John, with a remainder to the heirs of his body. 
Therefore, if the rule was to be applied, John was tenant ■ 
in tail, with the power of alienation. But the testator • 
had declared his intention to be that none of his chil- ; 
dren should sell or dispose of the estate, and he had in- ■ 
terposed a limitation to Isaac Gale during John's life. 
It was contended, therefore, that he had manifested a ' 
clear intention that John should take for life only, and 
that the heirs of John should take by purchase (in 
the language of the law), and not by descent ; i. e. im- 
mediately from the testator, and not as inheriting from 
the first taker. There had been a solemn decision in 
Conlson v. Coulson, before Lord Mansfield, that such 
words, intimating an intention by the testator that the 
first taker should not have a power of alienation, did not 
overcome the effect of giving by the same instrument an 
estate for life to a devisee, with a remainder to the heirs 
of his body, upon the supposition that the testator must 
be supposed to have used the words of these limitations 
in their usual technical sense, and that their effect was 
not to be controlled by other words indicating a wish or 
intention inconsistent with or derogatory to the estate- 
tail so created. The universal opinion of lawyers now 
is, that Perrin v. Blake should at once have been de- 
termined in conformity to this rule, which had long 
been acquiesced in and acted upon. But, unfortunately, 
Lord Mansfield, being intoxicated by the incense offered 
up to him, or misled by an excessive desire of preferring 
what he considered principle to authority, took a differ- 
ent view of the construction of the will, and resolved 
that John should only be considered as having taken an 
estate for life. Two of the puisnies (Willes and Aston) 
were induced to agree with him, but the stout-hearted 
Yates stubbornly stood out for the rule in Shelley's 
Case and the authority of Coulson v. Coulson. 

Lord Mansfield: "The law having allowed a free 
• Shelley's Case, i Rep. 93a. 



332 REIGN OF GEORGE II. [1756— 

communication of intention to the testator, it would be 
strange to say to him, ' Now you have communicated 
your intention, so that everybody understands what yo-u 
mean ; yet because you have used a certain expression 
of art, we will cross yo jr intention and give your will a 
different construction, though what you meant to have 
done is perfectly legal, and the only reason for con- 
travening you is because you have not expressed your- 
self as a lawyer.' My examination of this question always 
has, and, I believe, ever will, convince me that the legal 
intention, v/hen clearly explained, is to control the legal 
sense of a term of art, unwarily used by the testator. 
It is true, in Shelley's Case the rule is laid down as 
stated to-day ; but that rule can never affect this ques- 
tion. I must agree with my brothers Aston and Willes, 
on the grounds that the intention must govern ; that 
here the intention is manifest that Shelley's Case is no 
universal proposition, and thht there is no sound distinction 
between a devise of the legal estate and of a trust, or be- 
tween an executory trust and one executed." ' [After com- 
menting on the cases, he thus concluded :] " I admit 
that there is a devise to John the testator's son for life^ 
and in the same will a devise to the heirs of his body; 
and I agree that this is within the rule of Shelley's Case, 
and I do not doubt that there are and have been always 
lawyers of a different bent of genius and different course 
of education, who have chosen to adhere to the strict 
letter of the law, and they will say that Shelley's Case is 
an uncontrollable authority, and they will make a 
difference between trusts and legal estates, to the harass- 
ing of a suitor ; but if the courts of law will adhere to 
the mere letter of the law, the great men who preside in 
Chancery will ever discover new ways to creep out of the 
lines of law, and will tamper with equity.' My opinion, 
therefore, is, that the intention being clear beyond doubt 
to give an estate for life only to John, and an inheritance 
successively to be taken by the heirs of his body, and 

' These words ase put into Lord M.'s mouth, but I cannot believe that he 
spoke them, as in executory trusts the same effect is not given to technical 
language. 

' Judge Yates was so much hurt by the sarcasms thus leveled against 
him, that he resigned his seat in the Court of King's Bench, and transferred 
himself to (he Court of Common Pleas. 



n^7-] LORD MANSFIELD 



-^.11 



his intention being consistent with the rules of law, it 
shall be complied with in contradiction to the legal 
sense of the words used by the testator so unguardedly 
and ignorantly." 

This judgment was brought by writ of error into the 
Exchequer Chamber, and was there reversed by the 
opinions of all the Judges of the Common Pleas and 
Exchequer except Chief Justice De Grey and Baron 
Smyth.' Many, however, thinking that Lord Manlfield 
must be infallible, still backed his opinion, and the case 
was brought by another writ of error to the court of 
dernier rcssort, where he had a voice, and where his in- 
fluence was unbounded. Such apprehensions were en- 
tertained, that the contending parties agreed to an equal 
division of the property. 

But the compromise by no means put an end to the 
controversy between the Slielleyites and Anti-Shelleyites, 
which continued to rage with increased violence for 
years. . Many pamphlets were written for and against 
the rule, and for and against the application of it to 
Perrin v. Blake. Sir James Burrow, the Master of the 
Crown Office in the Court of King's Bench, and the 
reporter of Lord Mansfield's decisions, tried to protect 

' Mr. Justice Blackstone's; argument on this occasion was so inimitably 
«xquisite, that his reputation as a lawyer depends upon it still more than 
upon his Commentaries, and I cannot deny myself the pleasure of copying 
a few sentences from it : — " It is the best and safest way to adhere to those 
■criteria which the wisdom of tlie law has estaljlished for the certainty and 
the quiet of property. Every testator when he uses the legal idiom shall be 
supposed to use it in its legal meaning. If the contrary doctrine were to 
prevail,— if courts, either of law or equity (in both of which the rules of 
interpretation must always be the same), if these, or either of them, should 
indulge an unlimited latitude of forming conjectures upon wills, instead of 
attending to their grammatical or legal construction, the consequence mu>t 
be endless litigation. Every title tliat belongs to a will must be l)rought 
into Westminster Hall ; for if once we depart from the established rule of 
interpretation without a moral certainty that the meaning of the testator 
requires it, no interpretation can be safe till it has had the sanction of a 
court of justice. The law of real property in this country is now formed 
into a fine artificial system, full of unseen connections and nice dependencies, 
and he that breaks one link of the chain endangers the dissolution of the 
whole. Will it be said that when the testator's intent is manifest, the law 
will supply the proper means to carry it into execution, though he may have 
used improper ones? This would be turning every devise into an exec- 
utory trust, and would be arming every court of law with more than the 
jurisdiction of a court of equity ; a power to frame a conveyance for the 
nestator. instead of construing that svhich he has already framed." 



334 REIGN OF GEORGE II. [1756— 

his patron from the attacks aimed at him, and wrote a 
warm panegyric upon him, describing the felicity of the 
times under such a Chief Justice, and expressing wonder 
at the multiplicity of the business now brought before 
the Court, and the ability and celerity with which it was 
despatched, to the universal satisfaction of mankind. 
This unfortunately excited the indignation of Mr. Fearne, 
the celebrated conveyancer, a man of as acute under- 
star(€ing as Pascal or Sir Isaac Newton. He had been 
as much shocked by the disrespect shown to the rule in 
Shelley's Case as if it had been a fundamental article of 
our holy religion, and he could not endure the praise 
bestowed upon the author of this deadly heresy. There- 
fore, in a new edition of his famous " Essay on Con- 
tingent Remainders," he introduced many sarcastic 
observations on this encomiast, which he thus con- 
cluded : — " In forming an estimate of the times, we 
must look to the attributes of those men whose charac- 
ters and conduct impart the tinge and impress the 
stamp. An inquiry of this kind necessarily opens with 
the question, Vir bonus est quis ? To which we find the 
answer. Qui consulta patrum, qui leges juraque servat." 
He further, in a very offensive manner, asserted that 
Lord Mansfield, when Solicitor General, had himself 
deliberately given an opinion upon this very will, in 
conformity to law, " that John the son took an estate 
tail ; " and he published the following as a copy of this 
opinion : — 

" Upon the authority of the late determination in 
Coulson and Coulson, though I am aware how far the 
expression here differs from that case, I think the 
remainder to the heirs of the body of John will operate 
as a limitation to him in tail, which by a recovery prop- 
erly suffered, he might dock. W. MURRAY. 

" April 10, 1747." 

This attack would soon have been forgotten if Lord 
Mansfield and his friends had taken no notice of it, or 
had only said that he had forgotten that he ever gave 
such an opinion, or that upon considering the matter he 
had seen reason to alter it ; but Mr. Justice Buller soon 
after took occasion publicly to say, that " he had the 
strongest reason to believe that no such opinion was 



1787-] LORD MANSFIELD. 



335 



ever given by the then Solicitor General, to whom it was 
ascribed," — and Lord Mansfield, sitting by his side, 
himself observed — 

" Since it has been mentioned, I must take notice that 
it is most certainly true that I never gave such an opinion 
as that in print, nor any opinion at all on that will in the 
year 1747. Several opinions had been taken at different 
times, as events arose, and copies of them were furnished 
to the Court, on the argument of Perrin v. Blake. There 
were three given by Sir Dudley Ryder, and three by 
myself. Of those given by myself, the first was before 
1746, the second in that year, and the third in 1748. I 
have the copies still by me ; and the third states that I 
had perused my two former opinions, dated so and so, 
and concurred therewith ; viz. ' that John only took an 
estate for life ;' which makes it impossible that I should 
have given a contrary opinion. The learned author has 
been too hasty in his publication, and must have been 
imposed upon." 

This disavowal immediately produced a peppery 
pamphlet, in the shape of a letter from Mr. Fearne to 
Lord Mansfield, setting out a copy of the case for the 
opinion of Mr. Murray, to which the opinion of lOth 
April, 1747, was an answer, stating that he had received 
them from Mr. Booth, lately deceased, who, declaring 
that he had seen the original, had entered them in his 
collections, with other opinions to the same effect, for 
the instruction of his pupils, and that he had dedicated 
to the same Mr. Booth the same edition of his "Con- 
tingent Remainders " in which the disavowed opinion 
was first printed. He ironically added, — 

" I think it greatly to be regretted, my Lord, that my 
much respected friend, Mr. Booth, whom I have often 
heard commemorate the honor he experienced in your 
Lordship's intimacy and friendship during a course of 
several years antecedent and subsequent to the period 
which is said to have produced the opinion published 
by me, did not live to see his mistake corrected, a mis- 
take that seems to have stood so many years recorded 
in those books which were the constant resort of that 
gentleman's practice. A mistake I am confident it 



336 REIGN OF GEORGE II. {t-IS^— 

must have been, for Mr. Booth (I appeal to your Lord- 
ship's own knowledge of that gentleman) never would 
have let me commit such a copy of your opinion to the 
press, and have admitted the dedication to himself of 
the book containing it, if he had thought its genuine- 
ness or accuracy in any degree questionable. Abstracted 
from the credit due to Mr. Booth's verbal assurance, I 
could not, my lord, conceive an idea of that gentleman's 
recording a collection of spurious opinions, under imagin- 
ary names, as authorities. It was not for me to suspect 
the genuineness of copies thus authenticated ; and, 
though the event has disappointed the most conclusive 
appearances, yet I trust, rpy Lord, no man is or can be 
culpable for not reckoning on a possibility that betrays 
all grounds of belief, and starts into fact under the veil 
of incredulity. Such an event may serve, indeed, as a 
caution to the world against too implicit a credit even to 
the most AUTHORITATIVE of human asseverations." 

The Conveyancer was generally allowed to have gained 
a complete triumph over the Chief Justice, and many ex- 
pressed their belief that the opinions which Lord Mans- 
field declared he had given were all imaginary; but it 
was afterwards clearly proved that he had at least given 
one in accordance with his judgment, for the original 
was produced, and the following is a copy of it : — 

" I think John Williams under the will of his father 
was entitled only to an estate for life, either in the real 
or personal estate. Whether he took a remainder in 
tail in the real estate after a limitation to Gale, or wheth- 
er the heirs of his body were to take as purchasers, 
may admit of great doubt ; but I incline to think the 
heirs of his body ought to be construed words of pur- 
chase; and I ground my opinion upon the declaration 
with which the whole devise is introduced, which seems 
as strong as the words for life only in the case of Back- 
house and Wells. W. Murray. 

"31 Jan. 1746." 

The undoubted fact seems to be that, in the hurry of 
business, he had signed and forgotten both opinions, — 
which were, perhaps, by devils or deputies. His reputa- 
tion was considerably tarnished by his judgment in 



5(7 87-] LORD MANSFIELD. 



337 



Perrin v. Blake, and still more so by the personal dis- 
pute which arose out of it.' 

But there is no sufficient ground for the general 
charges brought against him by malevolent or by nar- 
row-minded persons — that in deciding civil rights he 
systematically disregarded the rules of the Common 
Law, and gave a preference to the Roman Law, to his 
own caprice, or to the doctrines of Equity. It may be 
proper here to give a specific refutation of these 
charges : — 

" In contempt or ignorance of the common law of 
England," says JUNIUS, "you have made it your study 
to introduce into the court where you preside measures 
of jurisprudence unknown to Englishmen. The Roman 
code, the law of nations, and the opinion of foreign 
civilians, are your perpetual theme ; but who ever heard 
you mention Magna Charta or the Bill of Rights 
with approbation or respect? By such treacherous arts 
the noble simplicity and free spirit of our Saxon laws 
were first corrupted. The Norman conquest was not 
complete until Norman lawyers had introduced their 
laws and reduced slavery to a system. Instead of those 
certain positive rules by which the judgments of a court 
of law should invariably be determined, you have fondly 
introducfed your own unsettled notions of equity and 
substantial justice. Decisions given upon such princi- 
ples do not alarm the public so much as they ought, be- 
cause the consequence and tendency of each particular 
instance is not observed or regarded. In the mean time 
the practice gains ground ; the Court of King's Bench 
becomes a court of equity; and the judge, instead of 
consulting the law of the land, refers only to the wis- 
dom of the court and the purity of hie own conscience." 

I am sorry to think of the countenance given to these 
misrepresentations by grave judicial authorities. Lord 
Eldon, Lord Kenyon, and Lord Redesdale, were accus- 

' I tremble when I think how stupid my account of the affair may appear ; 
but the lay gents should know, that it was not only intensely interesting 
when it arose, but that now, when conversation flags among us lawyers, one 
of us, to cause certain excitement and loquacity, will say, — " Do you think 
that Perrin v. Blake was well decided in the Court of King's Bench ?" or, 
"Do you believe that Lord Mansfield really gave the opinion, in 1747, 
which Fearne imputes to him ?" 
Ill — 22. 



338 REIGN OF GEORGE II. [i7S6— 

tomed to " shake their heads at Murray," because he 
ventured to view questions of law scientifically, and, 
where he was not restricted by precedents, to deal out 
justice in a manner that would not have suggested itself 
to a mere formalist. Many passages might be selected 
from their judgments seeking to disparage him ; but I 
shall content myself with the concentrated abuse of him 
by Lord Redesdale, when Chancellor of Ireland, in the 
case of French v. Woolston} 

" Lord Mansfield had oh his mind prejudices derived 
from his familiarity with the Scotch law, where law and 
equity are administered in the same courts, and where 
the distinction between them which subsists with us is 
not known , and there are many things in his decisions 
which show that his mind had received a tinge on that 
subject not quite consistent with the constitntion of 
England and Ireland in the administration of justice. 
Lord Mansfield seems to have considered that it mani- 
fested liberality of sentiment to endeavor to give the 
courts of law the powers which are vested in equity; 
that it was the duty of a good judge ampliare juris- 
dictionem." 

For the first charge, by Junius, there is not the 
slightest color or pretense. Lord Mansfield did not 
think (and no man qualified to form an opinion upon the 
subject can think) that the Common Law of England, 
as we find it in the old Text-books and Reports, was a 
perfect code adapted to the wants of a civilized and 
commercial nation. He did consider (as all qualified to 
form an opinion upon the subject must consider) the Ro- 
man Civil Law a splendid monument of human wisdom. 
But in no instance did he ever attempt to substitute the 
rules and maxims of the latter for those of the former 
where they are at variance. He made ample use of the 
compilation of Justinian, and of the commentators upon 
it, but only for a supply of principles to guide him upon 
questions unsettled by prior decisions in England. He 
derived similar assistance from the law of nations, and 
from the modern continental codes. But while he 
grafted new shoots of great value on the barren branches 
of the Saxon juridical tree, he never injured its roots, 
' I Scholes and Lefroy, 152. 



1787-] L ORD MA ySFIELZ). 



339 



and hfe allowed this vigorous stock to bear the native 
and racy fruits for which it had been justly renowned. 

There is more plausibility in the charge that he neg- 
lected former decisions too much for his own notions of 
justice and expediency, — forgetting that he sat on the 
bench Jus dicere, non jus dare — to administer the exist- 
ing law, not to legislate. He certainly was on several 
occasions led astray by a desire to make the rules laid 
down by his predecessors bend to the necessities of an 
altered state of the social system. For example, he held 
that an action might be maintained against a married 
woman, as if she v/ere single, where she had property 
settled upon her separately and her husband was not 
liable for the debt ;' and this heresy was afterwards -con- 
demned by more orthodox judges, who thought that 
human reason was not to be exercised in such a matter 
of faith." But he rarely showed any exception to his 
systematic respect for established forms, and his leading 
object was, by their assistance, to get at justice. Thus, 
in The King v. The Mayor of Carmarthen, he gave full 
effect to a mere technical objection, but contrived a 
mode by which the merits of the case might neverthe- 
less be inquired into, saying, " General rules are wisely 
established for attaining justice with ease, certainty, 
and despatch. But the great end of them being to do 
justice, the Court are to see that it be really attained. 
What I have suggested seems to be the true way to come 
at justice, and what we ought therefore to do ; for the 
genuine test is, ' boni judicis ampliare Justitiam,' not 
jurisdictionem, as it has been often cited." ' And here 
is the limit which he wisely laid down to the argument 
ab inconvenienti : "Arguments of convenience and in- 
convenience are always to be taken into consideration 
when we are not tied down by erroneous opinions, which 
have prevailed so far in practice that property would be 
shaken by any alteration of them." * 

But the charge which has stuck to Lord Mansfield, 
and, being often reiterated, has to a certain degree dam 

' See Ringsted v. I^y Lanesborough, 3 Doug. I97 ; Carboit v. Poelniti 
I Term Rep. 5. 

' Marshall v. Rutton, 8 Term Rep. 545. » I Burr. 292. 

' Burgess v. Wheat, Sir W. Blackstone's Rep 123, in the decision of 
which he assisted Lord Chancellor Northington. 



340 



REIGN OF GEORGE II. [i7S6— 



aged his authority in Westminster Hall, is, that, sitting 
in the Court of King's Bench, he neglected the boundary 
between legal and equitable jurisdiction. This is treated 
with levity by the uninitiated. "As a judge," says 
Lord Mahon, " several lawyers have objected to him 
that ' he introduced too much equity into his court,' — a 
reproach which, till they explain it, sounds like a satire 
on their own profession." ' It is easy to explain hov/ 
this would be a reproach if well founded. By the fun- 
damental constitution of our juridical system, whether 
for good or for evil, there are two sorts of courts, — courts 
of law and courts of equity — in which, on the same facts, 
a different decision is given respecting rights and liabili- 
ties; — with a view of obtaining ultimately a satisfactory 
distribution of justice. In the nature of things there is 
a distinction between the matters referred to the one set 
of courts and to the other ; — courts of law, for example, 
having cognizance where there are only two parties in 
whom is exclusively vested both the beneficial and 
the legal interest, — whereas courts of equity only can 
give adequate relief when there is a multiplicity of 
parties, and those in whom the legal right is vested are 
only trustees for others who ought to enjoy beneficially. 
The procedure by which suits between these different 
parties are conducted is by necessity essentially different, 
and to confound the rules by which they are to be con- 
ducted must produce confusion and mischief. Neither 
must Law be irregularly imported into a court of equity, 
nor Equity into a court of law. Had Lord Mansfield 
really attempted to make the Court of King's Bench a 
court of equity, drawing to its cognizance disputes which 
could not be properly adjusted by the machinery belong- 
ing to it, and attempting to enforce the performance of 
■fiduciary obligations, I should have thought that he 
deserved all the censure which has been heaped upon 
him. But it will be found that he never sought, in one 
single instance, to exercise in a court of law jurisdiction 
•which is not assigned by the constitution to a court of 
law, and for which a court of law is not fully competent. 
Equity practitioners, the mere creatures of habit, who 
think that our juridical proceedings, as they first beheld 

' History, iv. 53. 



1 7 §7 -J LORD MANSFIELD. 



341 



them, rest upon the eternal fitness of things, and are 
as unchangeable in their nature as the movements of 
the heavenly bodies, were shocked by seeing him save 
time and expense in the conduct of an action on a policy 
of insurance, by requiring a disclosure of papers essential 
to the trial, and by granting a commission to examine 
witnesses abroad — thereby obviating the necessity for 
filing a bill in the Court of Chancery to effectuate the 
very same object. 

But then he is accused of saying that " whatever is a 
good execution of a power in equity should be con- 
sidered good in law." This charge is untrue. There 
are certain cases in which the validity of the execution 
of a power, when the required form has not been 
strictly observed, depends upon circumstances which a 
court of equity alone has the means of investigating, as 
where the power is executed for a valuable consideration ; 
and these he was always for leaving exclusively to a 
court of equity, considering the execution invalid at 
law. There is another class of cases where, although 
the required form has not been observed, the execution 
is held void at law, and uniformly valid in equity, with- 
out looking beyond the power and the deed executing 
it. As where tenant for life being authorized, under a 
marriage settlement, to limit the premises to his wife 
for her life by way of jointure, he grants a term for 
ninety-nine years, determinable on her life. Lord 
Hardwicke, in the Court of King's Bench, held that the 
term was void, not being warranted by the words of the 
power ; and Lord Talbot, in the Court of Chancery, 
without any other circumstance, held the term to be 
valid, and decreed the defendant to pay all the costs 
both at law and equity. In such cases Lord Mansfield 
thought, very reasonably, that, an invariable rule being 
laid down, the execution of the power should be sup- 
ported at law as well as in equity.' 

The remaining alleged instance of his confounding law 
and equity, is a doctrine falsely imputed to him, that in 
an action of ejectment the equitable estate shall prevail. 
This would, indeed, have been most mischievous, for 
nothing has tended more to the security of title in 
' Str. 992 ; Burr. 1147 ; 7 Term Rep. 4S0. 



342 REIGN OF GEORGE II. [1756— 

England than keeping distinct the legal and equitable 
estate in land; and the result of an action of ejectment 
must not depend upon trusts, which a jury would be 
unfit to decide or to comprehend. Lord Mansfield never 
thought for a moment that in ejectment there could 
be a recovery on an equitable title. He did declare 
" that he and many of the judges had resolved never 
to suffer a plaintiff in ejectment to be non-suited by a 
term outstanding in his own trustee, or a satisfied term 
set up by a mortgagor against a mortgagee ; but that 
they would direct the jury to presume it surrendered." 
The true meaning of this resolution is that, where 
trustees ought to convey to the beneficial owner, it shall 
be left to the jury to presume that they have con- 
veyed accordingly ; and where the beneficial occupation 
of an estate induces the probability that there has been 
a conveyance of the legal estate to the person who is 
equitably entitled to it, a jury may be directed to pre- 
sume a conveyance of the legal estate. Lord Mansfield 
justly complained of the absurdity of English con- 
veyancing by which the creation of term is used for the 
purpose of charging the land, and these terms are still 
supposed to continue when the purpose is served for 
which they were created ; but he never for a moment 
countenanced the doctrine that in a court of law the 
legal title must not prevail.' Such are the " equitable 
doctrines of Lord Mansfield " which offended the pedants 
of Westminster Hall. He never even showed any pre- 
dilection for the peculiar modes of proceeding in equity, 
and he used manfully to insist upon the maxim that 
" equity follows the law," — as when he declared that 
equity had no right to support a lease granted by a 
mortgagor after the mortgage, or to treat commercial 
questions differently, or to put a different construction 
on an act of parliament." Whatever Junius might 
assert, it is well known that Lord Mansfield, instead of 
preferring praetorian process, by which law and fact 
were to be decided by a single judge, sincerely praised 
the Common Law in so far as it separates law from fact, 

' See Lade v. Halford, Bull. N. P no. Weakley v. Biuknell, Cowp. 473. j 
Yeo V. Rogers, 5 East, 138 n. 
' See 2 Evans, 404 



1787-] LORD MANSFIELD. 343 

referring law to four judges, and fact to twelve Jury- 
men ; and that he himself often declared that he never 
passed his time more satisfactorily or agreeably than in 
trying mercantile causes by the special jury of merchants 
at Guildhall." 

While libeled by JUNIUS and the followers, Lord 
Mansfield was justly complimented by BURKE, a 
philosophic statesman deeply imbued with the scientific 
principles of jurisprudence, who, having been con- 
stantly opposed to him in politics, could have viewed 
his judicial career with no favorable prepossessions, 
but having quoted his arguments at the bar to show 
that a Hindoo should be admitted as a witness, when 
sworn according to the ceremonies of the Hindoo religion, 
thus proceeds : — 

" The sentiments of Murray, the Solicitor General, 
are of no small weight in themselves, and they are au- 
thority by being judicially adopted. His ideas go to the 
growing amelioration of the law by making its liberality 
keep pace with the demands of justice and the actual 
•concerns of the world, — not restricting the infinitely 
■diversified occasions of men, and the rules of natural 
justice, within artificial circumscriptions, but conform- 
ing our jurisprudence to the growth of our commerce 
and of our empire. This enlargement of our concerns 
he apears, in the year 1744,' almost to have foreseen ; 
and he lived to behold it." 

To complete my general sketch of Lord Mansfield on 
the bench, I ought here to notice him as a Criminal 
Judge — although I shall afterwards have to give some 
details of state trials at which he presided. 'Sitting in 
the Crown Court he was, if possible, more remarkable 
for calmness, courtesy and dignity. There was no com- 
plaint of any improper convictions before him, but he 
■did not allow the guilty much chance of escaping, and, 
for the sake of example, he was somewhat severe in the 
punishments he inflicted. In cases of forgery he was 
always for carrying the capital sentence into execution. 

' He had great influence with juries, and hardly ever " lost the verdict ; " 
i. e., the jury almost invariably found the verdict according to his direction. 

' The year in which Omichund v. Barker vr^s argued and determined, i 
Atkyns, p. 40, 42. 



344 REIGN OF GEORGE II. [1756— 

Attending the Council when the Perreaus had been found 
guilty, he strongly concurred in rejecting the powerful 
intercession for mercy; and the fate of Dr. Dodd was 
afterwards ascribed to the pointed answer which he gave 
when the King asked whether, on account of the con- 
vict being a clergyman, his life might not be spared, — 
" If Dr. Dodd does not suffer the sentence of the law, 
the Perreaus have been murdered'.'" This feeling pro- 
ceeded by no means from any cruelty in his nature, but 
from the opinion then and long after very generally 
entertained by reflecting men, as well as by the multi- 
tude, that it was indispensably necessary, for our com- 
mercial credit, to visit forgery with death in every in- 
stance." That he was not in advance of the age in which 
he lived, justifies regret but not censure. 

Before resuming my narrative, I have only to mention 
that for forty years Lord Mansfield took the principal 
part in disposing of Scotch appeals in the House of 
Lords. For this task he was peculiarly well qualified by 
the familiar knowledge of Scotch law, in which a suc- 
cession of Chancellors — Northington, Camden, and 
Bathurst — were utterly deficient. At the hearing of 
these cases he often sat as Speaker on the woolsack, arid 
they were always disposed of according to his opinion. 
He was bold alike in his decision of feudal and of com- 
mercial cases ; and he set the Scotch judges right in the 
construction of their own law, as well as of that which 
he was in the daily habit of administering. He was par- 
ticularly obliged to restrain their devoted love of per^ 
petuities, which English lawyers are trained to hate ; and 
in the great Duntreath Case he reversed the unanimous, 
judgment of the fifteen Lords of Session in favor of a 
defective entail, and thereby struck off the fetters of 
half the entailed estates in Scotland. At first there was 
deep grumbling against this decision in the Parliament 

' HoU. 148, 149. 

'' I myself once heard a judge, at Stafford, thus conclude an address to 
a prisoner convicted of uttering a forged one-pound note, after having 
pointed out to him the enormity of the offense, and exhorted him to pre- 
pare for another world : — " And I trust that through the merits and media- 
tion of our Blessed Redeemer, you may there experience that mercy which a- 
liue regard to the credit of the paper cm-rency of the country forbids you to- 
hope for here," 



I787-J LORD MANSFIELD. 345 

House at Edinburgh; but it was afterwards allowed, 
e\en there, to have proceeded on sound feudal princi- 
ples. 

Although, generally speaking, no lay lord interfered 
in the consideration of any Scotch appeals, the Douglas 
cause agitated all the members of the House, and was a 
subject of intrigue and canvass as much as a motion for 
an address of want of confidence to turn out a minister. 
Lord Mansfield, I think took the right side in holding 
the claimant to be the true son of Lady Jane Douglas, 
not of the Paris rope-dancer ; but his speech, as reported, 
is very inferior to his usual juridical efforts. This may 
be accounted for from the audience he addressed, who 
\vere more likely to be influenced by an appeal to their 
feelings and their prejudices than by a sound exposition 
of the principles of law involved in the case, and a 
masterly analysis of the evidence.' 

From this sketch, however imperfect, of Lord Mans- 
field as a Judge, I think it must be admitted that he is 
one of the greatest who has ever appeared ; and that, 
while he impartially dealt out justice to the litigants who 
appeared before him, — by the enlightened principles 
which he laid down and the wise rules which he estab- 
lished he materially improved the jurisprudence of his 
country. This is surely fame little inferior to that of 
winning battles or making discoveries in science.' 

I must now follow his political career, which was more 
checkered, and on which opinions are much more 
divided. 

' The chief argument he relied upon was, that Lady Jane Douglas, being 
of such illustrious descent, could not possibly have committed the fraud im- 
puted to her See Lives of the Chancellors, v. 234. 

' I again apologize for introducing so many law cases into a memoir in- 
tended for general circulation ; but it should be recollected that the selec- 
tion is made from many volumes of Reports, extending over a period of 
above thirty years. 




CHAPTER XXXV. 

CONTINUATION OF THE LIFE OF LORD MANSFIELD 

FROM HIS BEING MADE CHIEF JUSTICE TILL 

THE ACCESSION OF GEORGE III. 

LORD MANSFIELD had hardly been inaugurated 
as Chief Justice of the King's Bench when he was 
offered the high dignity of Lord Chancellor. Lord 
Hardwicke, notwithstanding the efforts made to retain 
him, had insisted on resigning along with the Duke of 
Newcastle ; and the new ministers were much at a loss 
for a successor to him, there being no lawyer connected 
with them whom they could put forward in such a con- 
spicuous position. It seems strange to us that they 
should have thought of the Attorney General of the 
Government they had overturned ; but we must remem- 
ber that, in the reign of George II., all political men 
who were candidates for office were Wkigs alike, pro- 
fessing nearly the same political principles, and separated 
only by personal associations and enmities ; so that, if 
considerations of private honor permitted, a politician 
took what course he chose, without incurring obloquy. 
The crime of ratting from one great party to another 
was then unknown. As the ties that had united Lord 
Mansfield with the Duke of Newcastle and Lord Hard- 
wicke were understood to, be dissolved, he might, with- 
out loss of character, have taken office with Pitt under 
the nominal headship of the Duke of Devonshire. But 
he at once rejected the proposal. He easily foresaw 
that the present Government, which had neither court 
favor, nor parliamentary strength, nor popularity, must 
soon fall to pieces ; and he was swayed by nobler con- 
siderations than the imprudence of exchanging an pffice 
which he held during life for one the tenure of Which 
would be so precarious, — for all the glory to be acquired 
by perfecting our system of equitable jurisprudence had 



5756-] LORD MANSFIELD. 



547 



been already reaped, and he was just entering upon the 
untried untertaking of adapting the administration of 
justice in our common law courts to the new circum- 
stances of the country. The great seal was therefore 
given in commission to Lord Chief Justice Willes. Mr. 
Justice Wilmot, and Mr. Baron Smith.' 

On the meeting of Parliament Lord Mansfield took 
his seat in the House of Lords,' where he was destined 
fully to support the reputation he had acquired as an 
able debater. There is only one volume of the Parlia- 
mentary History for twelve years, from 1753 to 1765, so 
that we have very few specimens of his oratory ; but we 
know from contemporary memoirs that, not confining 
himself to legal questions, he was in the habit of speakt 
ing with powerful effect upon subjects connected with 
the general government of the empire. H:s maiden 
speech was drav/n forth by a rather ludicrous incident, 
which we should consider harmless, and treat with a 
laugh. As a "quiz" upon the Ministers, — on the day 
when Parliament assembled there was printed and sold 
in the streets a spurious King's Speech, purporting to 
be " His Majesty's most gracious Speech to both Houses 
of Parliament." There being some talk of proceeding 
against the author, the King satirically observed, "I 
hope the man's punishment will be of the mildest sort, 
for I have read both speeches, and, as far as I under- 

' Walp. Mem. Geo. II., 106, 107. 

' " Immediately after the King's Speech at the commencement of the 
session, ' the Speaker acquainted the House that there were some new 
created Lords without ready to be introduced.' Whereupon William Mur- 
ray, Esq., Lord Chief Justice of His Majesty's Court of King's Bench, 
being, by letters patent dated the 8ih day of November, in the 30th year of 
the reign of his present Majesty, created Lord Mansfield, Baron of Mans- 
field, in the County of Nottingham, was (in his robes) introduced between 
the Lord Willoughby, of Parham, and the Lord Edgecumbe (also in theii 
robes), the Gentleman Usher of the Black Rod, Garter King at Arms and 
the Lord Great Chamberlain of England preceding. 

" His Lordship, on his knee, presented his Patent to the Speaker at the 
woolsack, who delivered it to the Clerk ; and the rame was read at the 
table. 

" His Writ of Summons was also read, as follows : — ' George the Second, 
etc. 

" Then his Lordship came to the table, and, having taken the oaths and 
made and subscribed the Declaration, and also taken and subscribed the 
Oath of Abjuration, pursuant to the statutes, was placed on the lower end 
of the Barons' Bench." — 29 Journal, p. 5. 



348 REIGN OF GEORGE II. [1757.. 

stand them, the spurious speech is better than the one I 
delivered.'" However, Lord Sandwich brought the 
matter before the House of Peers as a breach of priv- 
ilege ; and Lord Hardwicke, still taking the lead, having 
in a dictatorial way moved " that the delinquent parties 
should be imprisoned, and that the insolent document 
itself should be burnt in Palace Yard by the hands of 
the common hangman," Lord Mansfield agreed that 
such an insult to the Crown and the two Houses, if 
taken notice of, could not be passed over or dealt with, 
more leniently than proposed by the noble and learned 
Lord, who had so long presided over their deliberations: 
although he might perhaps have done better by moving 
the previous question or an adjournment." 

Soon after, Lord Mansfield co-operated with Lord 
Hardwicke on a more worthy occasion, in rejecting the 
bill sent up from the Commons to authorize the officers- 
who had sat on Admiral Byng's court-martial to disclose 
the deliberations which had taken place among them 
before they found him guilty and sentenced him to be 
shot ; but he was in no respect answerable for the atro- 
city of carrying into execution a sentence which was- 
illegal on the face of it, as it acquitted the accused of 
cowardice and all bad motive, and was accompanied by 
a unanimous recommendation to mercy.' 

Before many months had elapsed, the Ministry was. 
dissolved ; and, on the dismissal of Mr. Legge, Lord 
Mansfield actually became Chancellor of the Exchequer. 
This was according to the ancient usage by which, on a 
vacancy of this office, the seals of it are delivered to the 
Chief Justice of the King's Bench for the time being,. 

• There had been serious differences about the speech between the King, 
and Pitt, who had written it. 

'15 Pari. Hist. 779: Walp. Mem. Geo. II., 109,. no; Waldegrave's 
Mem. S9. 

' 1= Pa:l. Hist. 803-822. Horace Walpole represents that in opposing 
the bill, he indecorously entered into the merits of the case, trying to rouse 
indignation against the prisoner, and concluding with the observation,^ 
" that there had been times when a sea-officer had blown up his ship rather 
than be taken or retreat" — {Mem. Geo. II., vol. ii. p. 174). But this is a 
palpable misrepresentation, proceeding from the writer's spite against the 
Duke of Newcastle, to whose influence he wishes to impute the execution, 
of Byng. Lord Mansfield, at this time, was neither in, nor connected with 
the Government, and could be under no bias against the side of mercy 



17S7-J LORD MANSFIELD. 



349 



who does formal acts till a successor is appointed. Such 
a provisional arrangement had not previously lasted 
more than a few days ; but Lord Mansfield continued 
nominally finance minister for three months, and specu- 
lations began to be formed how, being a peer, he was to 
open the Budget. 

The whole of this interval was consumed by intrigues 
for the formation of a new Ministry, in which he acted a 
very prominent part. To him it was chiefly owing that 
the reins of government were finally intrusted to Pitt, 
his former rival ; and that the war, which had hitherto 
been marked by defeat and disgrace, ended in conquest 
and glory. After long huckstering, the King had re- 
solved that the terms on which alone Pitt would accept 
office should be rejected, and that Fox should be at the 
head of affairs as Chancellor of the Exchequer. Lord 
Mansfield was summoned to deliver up to hira the seals 
of the office, and we have this statement from Lord 
Waldegrave of what then occurred : — 

"On the morning of the nth of June, Lord Chief 
Justice Mansfield was ordered to be at Kensington. 
The reason assigned was that he should deliver back the 
Exchequer seals, which had been in his possession from 
the time of Legge's resignation ; but the real business 
was of a different nature. The King discoursed with 
him a considerable time in the most confidential man- 
ner, and the conversation ended by giving Lord Mans- 
field full powers to negotiate with Pitt and the D. of 
Newcastle, his Majesty only insisting that Lord Temple 
should have no employment which required frequent at- 
tendance in the closet, and that Fox should be ap- 
pointed Paymaster, which last demand did not proceed 
from any present partiality, but was the fulfilling of a 
former engagement. Before the final resolution was 
taken, his Majesty thought proper to take my advice. I 
told him I was clear in my opinion that our administra- 
tion would be routed at the opening of the session ; for 
that the D. of Newcastle had a considerable majority in 
the House of Commons, whilst the popular cry without 
doors was violent in favor of Mr. Pitt." 

Lord Mansfield, on his return, wrote the following ac- 



350 REIGN OF GEORGE II. [1757. 

count of his interview to Lord Hardwicke, with whom 
he was now c®-operating very cordially: — 

" Saturday, 4 o'clock. 

" My Lord, — I am just come from Kensington, where 
I was by order to deliver the seal, & Mr. Fox was there 
to receive it. Upon my going into the closet, the King 
did me the honor to talk to me of the present melan- 
choly situation, & bid me tell him what I thought. I 
did so very sincerely, and made a great impression. The 
result was, that I have brought the seal back, and am to 
speak to the D. of N. and y' L"p. By good luck I met the 
D. of N. at Hyde Park corner. I stopped L<i Rocking- 
ham's resignation, which I never approved of; he fol- 
lowed me home, & now tells me that he stopped the D. 
of Rutland. I am, at this moment, going to Guildhall, 
& give y L'p this trouble to know w' I may wait upon 
your Lordship if I get back before \ an hour after 10. 

" 1 beg your Lordship wouj not take the trouble to 
write, but to send me word how late I may venture to 
come if y L'p is to be at home to-night. 
" I have the honor to be, 

" With the greatest respect, 
" Y' L'p's most obliged, hu. servant, 

" Mansfield." 

In consequence, the negotiation was renewed ; and it 
was at last finally arranged that Fox; with the Paymas- 
tership, by which he might amass wealth, would give no 
further trouble ; that all jobbing patronage should be 
given to Newcastle ; and that all real power should be 
intrusted to Pitt. 

A serious difficulty arose with respect to the office of 
Chancellor, and it was again earnestly pressed on Lord 
Mansfield, whose reluctance it was hoped might be over- 
come by confidence in the stability of the new Govern- 
ment. But he had been much gratified by the applause 
which he had received as a Common Law Judge, and he 
resolved not to yield to another post for which he felt 
that he was so highly qualified. After a sordid chaffer- 
ing with several eminent lawyers about peerages, pen- 
sions, and reversions, the great seal was given to Sir 
Robert Henly as Lord Keeper, who waived all condi- 
tions as to peerage, pension, or reversion ; — the two dis- 



1 7 5 7 • ] L ORD MANSFIELD. 



35 » 



tinguished law dignitaries who superintended the nego- 
tiation being well pleased that their empire in the 
Upper House was not to be invaded by any new com- 
petitor. 

At last the new Administration was installed, and 
Lord Mansfield surrendered back to Mr. Legge the seals 
of Chancellor of the Exchequer. But, instead of return- 
ing, as he ought to have done, to the exclusive discharge 
of his judicial duties, he unhappily assumed the char- 
acter of a political judge by becoming a member of the 
Cabinet. 

" Lord Mansfield," says Horace Walpole, " was called 
to the conciliabulum, or essence of the council ; an honor 
not only uncommon and due to his high abilities, but set 
off by his being proposed by Lord Hardwicke himself, 
who wished, he said, to get repose for three months in 
the country: Lord Mansfield would supply his place. It 
was about this time that this great Chief Justice set him- 
self to take information against libels, and would sift, he 
said, what was the real liberty of the press. The occa- 
sions of the times had called him off from principles 
that favored an arbitrary king — he still leaned towards 
an arbitrary government." ' 

All parties in the state being united, no opposition 
was made to an arrangement by which a Criminal Judge 
. was to direct that prosecutions for treason and sedition, 
afterwards to come before him as a judge, should be in- 
stituted, and was to preside at trials where the question 
would be " whether a publication was libelous, or a just 
animadversion on the misdeeds of himself and his col- 
leagues?" The administration of justice under such cir- 
cumstances might be pure, but could not be free from 
suspicion ; and the objection was obvious, that remarks 
upon the licentiousness of the press could not be made 
with proper freedom and effect by a judge who, although 
only performing his strict duty as an exponder of the 
law, might be denounced as a partisan trying to screen 
the imbecility or wickedness of the Government. It is 
a remarkable circumstance that the distinguished me- 
moir-writer whom I have quoted, states, without any 
malice or satire, how Lord Mansfield henceforth began 
' Walp. Mem. Geo. II., vol. ii. pp. 265, 266. 



352 



REIGN OF GEORGE II. Vlll— 



to yield to the arbitrary principles which he entertained, 
and meditated the measures against the press by which 
he afterwards incurred so much obloquy. Although this 
arrangement was cited as a precedent when Lord Chief 
Justice Ellenborough was introduced into the Cabinet 
by a Whig Government in the year 1806, I must express 
a clear opinion that it was unconstitutional, and a strong 
hope that it will never be again attempted.' 

In the division of the spoil upon this occasion the 
patronage of Scotland was assigned to Lord Mansfield.' 

' Sea Lives of the Chancellors, vol. vi. ch. clxxxv. 

' The following is a letter from him, politely refusing the office of Lord 
President of the Court of Session to Lord Prestongrange, who, when Lord 
Advocate, had retired as Pusine Judge : — 

" London, 13th March, 1760. 
" My dear Lord, — I had yesterday the favor of yours, and am much 
obliged to you for doing me the justice to believe that I am very sincerely 
your friend and serv'. I have seen no body of consequence as to the 
subject-matter of y' letter since I rec'' it. Your pretensions are extremely 
well founded before you accepted a seat upon the bench ; and since, I do 
Essure you, report has been favorable to you here as you cou'd desire. I 
think you can have no competitor except the Advocate ; and I rather 
believe that he will have it, if he insists. 

" I am with the greatest truth and regard, 

" Y' most aff: hu : serv', 

" Mansfield." 
Lord Mansfield when at the bar had written the same individual the 
following letter of congratulation on his becoming Lord Prestongrange : — 

" Lincoln's Inn, 8th Au : 1754. 
"My dear Lord, — I am ashamed that I have not thanked you before for, 
your very flattering and obliging letter. As it is agreeable to you to suc- 
L'eed Lord Elches, I wish you joy with all my heart. It is very happy for 
the people to have such offices so filled ; tho' I can't help lamenting that we 
shall be deprived of the pleasure of y company here, and the great benefit 
of y assistance in the King's service. I Leg my compliments to Mrs. Grant" 
and hope you do me the justice to believe me, 

" My dear Lord, 

" Y' most aff : & ob : hu : serv', 

"W. Murray." 
Lord Prestongrange afterwards applied for the office of Lord Justice 
Cl?rk, and received the following rebuff, showing the writer to be tired of 
his importunity : — 

" Kenwood, 7th April, 1763. 
"My dear Lord, — I am sorry for the J. Clerk, tho' he has lived to so 
great an age. By y' letter, which. I have this moment received, I suppose 
he is no more. I certainly shall not be consulted upon the choice of his 
successor. Common report has long said that it was fixed. If I had any 
power I would not fail to do justice to your pretensions, because I am and 
have been, with great truth, 

" Your most afl" : hu : serv', 

" M a.vse-;eld." 



t76o-] LORD MANSFIELD. 



353 



Debating now went out of fashion, and for a whole 
session together there would not be a single division in 
either House. It nnight have been thought that, to gain 
notoriety, or to please constituents, or to gratify malice, 
some adventurous members would occasionally have 
opposed the measures of Government however wise and 
successful, and brought forward motions however small 
the minority to divide in favor of them ; but all persons, 
in and out of parliament seem to have been intoxicated 
by the successes of the war, — bells rang, and bonfires 
blazed, and nothing was listened to except praises of the 
genius of Pitt in planing conquests and the heroic 
bravery of Wolfe in achieving them. In our parlia- 
mentary annals, from the accession of James I. to the 
present time, there is nothing to be found approaching 
the unanimity and tranquillity which marked the last 
years of the reign of George II. 

In this interval Lord Mapsfield, although always ready 
as a champion of the Ministers, had no occasion to defend 
them — and he spoke once, and once only, on a subject 
unconnected with party.' A very useful bill had come 
up from the Commons, introduced by Mr. Pratt (after- 
wards Lord Camden),to improve the Habeas Corpus Act, 
by extending it to cases where parties were deprived of 
their liberty without any criminal charge being alleged 
against them. Blackstone's Commentaries, lately pub- 
lished, had taught the doctrine that the penal code of 
England, as it then existed, although we consider it to 
have been very defective as well as very bloody, was an 
absolute piece of perfection, and for more than half a 
century afterwards any one who proposed to amend it 
was denounced as disaffected or visionary. I am con- 
cerned to say that Lord Mansfield, from whom better 
things might have been expected, stirred up a furious 
opposition to this bill, and threw it out.' According to 
a report of his speech by Dr. Birch, he said " that people 
supported it from the groundless imagination that liberty 
was concerned in it, whereas it had as little to do with 
liberty as the Navigation Laws or the act for encouraging 
the cultivation of madder ; that ignorance on subjects 
of this nature was extremely pardonable, since the know- 

' June 4, 1753. 
HI.— 23 ■" 



354 REIGN OF GEORGE II. [1758. 

ledge of particular laws required a particular study of 
them ; that the greatest genius, without such study, 
could no more become master of them than of Japanese 
literature without understanding the. language of the 
country ; and that the writ of habeas corpus at common 
law was a sufficient remedy against all those abuses which 
this bill was supposed to rectify." ' However, in a more 
enlightened age the bill was again introduced and re- 
ceived unanimous support in both Houses of Parlia- 
ment.^ 

Loid Mansfield was now called upon for the first time 
to preside at a state trial ; and as the case was clear, and 
popular feeling rail with the prosecution, he passed 
through it without censure, although in reality he was 
both prosecutor and judge. Dr. Hensey, a physician, 
had, since the commencement of the war, been in the 
pay of the French as a spy, receiving iTiOO a year. Our 
Government intercepted his letters, arrested him, seized 
his papers, and indicted him for high treason. His trial 
came on at the bar of the King's Bench before Lord 
Mansfield and the other judges of that court. 

The evidence was entirely documentary, consisting of 
letters written to the prisoner from agents of the French 
Government, which were found in his bureau,— and 
letters written by him to these agents, which were inter- 
cepted in the General Post Office in London — showing that 
he was in the habit of giving information to the enemy 
of the sailingof our fleets, and that in telling them of our 
projected expedition against Rochfort, he advised them to 
prevent it by invading England. His counsel strongly 
objected that the papers found in his bureau, not being 
written by him, and possibly being disapproved ofby 
him, were no evidence against him ; and that the letters 
in evidence which he had written did not amount to an 

' 15 Pari. Hist. guo. Horace Walpole says, — " He spoke for two houn 
and a half. His voice and manner, composed of harmonious solemnity, 
were the least graces of his speech. I am not averse to own, that I neveff 
heard so much argument, so much sense, or much oratory, united. His 
deviation into the abstruse minutiae of the law served but as a foil to the 
luminous parts of the oration. Perhaps it was the only speech which in my 
time had real effect, — that is, convinced many persons ; nor did l.eyer know 
how true a votary I was to liberty till I found I was not one of the number 
staggered by that speech."— ^<»». Geo II„ ii. 301. 

' 55 Geo. III. c. 100. 



T758.] LORD MANSFIELD. 355 

overt act of treason anymore than if they had remained 
in his bureau, as they were still in London when 
they came into the possession of the English Govern- 
ment : 

" But Lord Mansfield said, that the papers found in 
the prisoner's bureau were clearly admissible evidence ; 
it would be for the jury to say what weight was to be at- 
tached to them, and to consider how far the prisoner 
had repudiated them or acted upon them. The sending- 
off by the post a letter communicating intelligence to 
the enemy in time of war, he held to be a clear overt 
act of high treason, although it never reached its destina- 
tion, the crime charged in the indictment being the 
compassing of the King's death, which, according to all 
the authorities, was proved by writing and sending off 
a letter conveying intelligence to the King's enemies, 
whether or not it reached its destination." 

The other judges concurring, the prisoner was found 
guilty, and the Chief Justice pronounced sentence of 
death upon him, — but he was afterwards pardoned, and 
there was reason to think that, as usual, he had acted as 
a spy on both sides.' 

During the remainder of the reign of George IL, Lord 
Mansfield did not appear before the public except in 
the ordinary discharge of his official duties. The House 
of Lords only met to adjourn — and when the King's 
grandson, the Prince of Wales, on coming of age, took 
his seat, and wished to try his powers of oratory in that 
assembly, it was found impossible to get up a debate 
for his maiden speech. Cabinets, when held, Lord Mans- 
field regularly attended, but they were very rare, and 
being chiefly for the consideration of domestic affairs, 
then of small importance, they attracted little notice.' 
Mr. Secretary Pitt, the Prime Minister, discussed in his 
own bosom all measures respecting foreign policy and 
the conduct of the war, and communicated his resolu- 
tions only to the functionaries who were to carry them 

' 19 St. Tr. 1342-1382 ; Harris's Life of Lord Ilardwicke, iii. 170 ; Walp. 
Mem. Geo. II., ii. 309. 

' It is not very generally known, that both Lord Hardwicke and Lord 
Mansfield were cabinet ministers during Lord Chatham's first administra- 
tion, 



3S6 



REIGN OF GEORGE II. 



[1758. 



into execution.' Till the commencement of the new 
reign, Lord Mansfield's seat in the Cabinet was a mere 
honorary distinction. But from that era he acquired 
great political consequence, and for fifteen years to come 
there was probably no individual who more influenced 
the counsels of the nation both at home and abroad. 

' Not always even to them, for he would make the Lords of the Ad. 
miialty sign pipers which they were not allowed to read. 




CHAPTER XXXVI. 

CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL 
THE DISAPPEARANCE OF JUNIUS. 

HITHERTO Lord Mansfield had always called 
himself a Whig, although entertaining and not 
disguising what are considered Tory principles; 
but now that on the accession of George III. there was 
to be a new distribution of parties, and that the Tory 
flag was openly hoisted by royalty, he rallied under it. 

According to the construction put upon the Act of 
Settlement, which enacted that judges should hold their 
offices during good behavior instead of during pleasure, 
he might have been removed on the demise of the 
Crown ; but he was joyfully reinstated, and he soon be- 
came a special favorite of the new sovereign. His party 
had always been opposed to Leicester House, and he 
had been looked upon with dislike by all its adherents, 
but no sooner did Lord Bute come forward with pre- 
tensions to be Prime Minister than there was a secret 
sympathy between them. They were countrymen, they 
equally cherished the doctrine of the divine right of 
kings, and they both hated Pitt. While Bute impatiently 
coveted the possession of Pitt's power, Murray enviously 
beheld the dazzling ascendency attained by the man 
whom he had often beaten since their poetical struggle 
at Oxford. 

Without any quarrel with the falling minister, or 
formal treaty with his successor, the sagacious Chief 
Justice showed a growing coldness towards the one, and 
cordiality towards the other, — not concealing his satis- 
fation when Lord Bute was made a Secretary of State 
in the room of Lord Holdernesse and was introduced 
into the Cabinet. At last the crisis arrived, and it was 
necessary to take a decided part either with the one or 
the other. Pitt was now obliged to bring forward great 



3S8 REIGN OF GEORGE III. I1761. 

measures in a very different fashion from that adopted 
by him at the end of the last reign. Having certain in- 
telligence of the family alliance between the several 
branches of the House of Bourbon, he had formed a 
magnificent scheme of at once declaring war against 
Spain, sweeping the ocean of her ships, and conquering 
the richest of her colonies. There seems every reason 
to believe, that if promptly executed it would certainly 
have succeeded — but he was obliged to submit it to a 
cabinet. Mansfield took part with Bute, and the Great 
Commoner, being outvoted, declared that " he would 
not remain in a situation which made him responsible 
for measures he was no longer allowed to guide." From 
that hour Lord Bute was considered Prime Minister, 
although it was some time before he could be placed at 
the head of the Treasury, from the adhesiveness of the 
Duke of Newcastle, who was willing to submit to any 
degradation rather than be driven to resign. 

The new chief acted most cordially with Lord Mans- 
field, who had so essentially helped his elevation ; and 
their proceedings were very prudent. Furious popular 
discontent was apprehended from the dismissal of the 
Great Commoner, and even insurrections were talked 
of in the city of London and other great towns. 

" Hi motus animorum, atque haec certamina tanta, 
Pulveris exigui juctu compressa quiescunt." 

They advised the King to offer him a pension and a 
peerage for his i^iifi. The offer was accepted, and the 
same Gazette announced his resignation and the honors 
and rewards heaped upon him. For a space he not only 
ceased to be formidable, but was denounced by his for- 
mer admirers as sordid and corrupt.' " Oh that foolish- 
est of men !" cried Gray. " What !" exclaimed Horace 
Walpole, "to blast one's character for the sake of a 
paltry annuity and a long-necked peeress !" The tide 
ran so strong against the once Great Commoner, that 
he was pbliged to publish a letter addressed to his 

' " These," said Burke, "-were the barriers that were opposed against 
that torrent of popular rage which it was apprehended would proceed 
from this resignation. And the truth is, they answered their end per- 
fectly : the torrent for some time was beaten back, — almost diverted into 
iin opposite course." — Annual Register, 1761, p. 45. 



«762.] LORD MANSFIELD. 359 

friend Alderman Beckford, in which he complains of 
being " grossly misrepresented" and " infamously tra- 
duced." 

While counseled by Mansfield, Lord Bute likewise be- 
haved very prudently in opening the negotiation for 
peace, and in framing the preliminaries, which, though 
scouted by the ex-Premier, who was for still further 
humbling the House of Bourbon, were generally consid- 
ered honorable and advantageous, and were approved of 
by a vast majority in both Houses of Parliament. 

At this time it was believed by many, that Lord Mans- 
field, feeling the incompatibility of political power with 
his present office, desired to hold the great seal ; hoping 
thus to be actual prime minister, while his countryman 
was at the head of the Treasury. The apprehension 
■of such an arrangement caused deep uneasiness in the 
Hardwicke family, where a strong desire existed that 
Charles Yorke should be placed in the " marble chair," 
to which his father had added such luster. In a long 
letter written by him to the ex-Chancellor, giving an ac- 
count of an interview on the subject' with Lord Lyttle- 
ton, — after pointing out the objections to a Scotch- 
man being prime minister, and the proposal that he 
himself should have the great seal, he thus shows his 
jealousy and dislike of the Chief Justice of the King's 
Bench :-- 

" I added, with respect to the thing itself, that if I 
<:ould suppose the King would ever do me the honor 
hinted, I should not be afraid to accept it, tho' I should 
think it too early, and in many respects not eligible 

' This interview took place in consequence of a letter from Lord Hard- 
wicke to Charles Yorke, containing the following information: — "Lord 
Lyttleton told me that, before he went last to Hagley, his friend Lord 
•Egremont had said much to him on your subject ; that Lord Chancellor 
i(Northington) had complained to him of his health, and that he could 
not go on in his office ; that he wished the King and his servants would 
he thinking of a proper successor, &c. ; that, on this occasion, his Majesty 
had mentioned you, and that you stood high in his opinion. Lord Lyt- 
tleton asked his Lordship how Lord Mansfield stood in that respect? to 
which Lord Egremont had answered, that the King was offended ^y•ith 
him for so frequently declining to give his opinion in council, particu- 
larly at the last meeting at Lord President's, at which the Duke of Dev. 
onshire, Duke of Newcastle, and I were present. I understood that this 
was thrown out as a lure to me, being of so great consequence to my 
family." — Harris's Life of Lord Hardwicke, iii. 302. 



36o REIGN OF GEORGE III. [176?. 

at this time. I enquired how L* Mansfield stood, & 
whether he might not be thought of. He answered, that 
L'' M. would feel nothing personally as to me, because 
he would see that it was impossible for him to have the 
great seal, rebus sic stantibus. His Lordship answered 
to a different point from what I meant. I meant tO' 
draw from him what he did not mention of the King's 
displeasure. For as to Lord M.'s feelings, they would 
be strong, but of no real consequence. His manner has 
been offensive & unpopular in Westm' Hall ; & as S' Fr. 
Bacon says, perhaps I may improve whilst others are at a 
stand." 

Few, however, will believe that the wary Mansfield 
ever had such a wild fit of ambition, or could have been 
for a moment blind to the insuperable difficulties which 
his supposed scheme would have had to encounter. 

For some reason that has never been explained, and 
which it would be vain now to conjecture, there was,, 
soon after, a great coldness between the two Scotchmen, 
who, by a singular concatenation of improbable circum- 
stances, had actually guided the destinies of England ; 
and although the Chief Justice still continued a member 
of the Cabinet, the Prime Minister listened very little 
to his advice. Whether on this account I have no means 
of knowing, but certainly henceforth, he who had ap- 
peared a prudent statesman, likely long to enjoy power, 
was regarded as a minion of fortune, doomed to a speedy 
fall. He was at no pains decently to veil the unbounded 
power to which he had at once been raised by court 
favor, without ever before having been in office or made 
a speech in parliament ; he insisted on all preferment 
passing through his own hands ; and although aware of 
the jealousy excited by allusions to the place of his- 
birth, he wantonly inflamed it by removing many deserv- 
ing subordinates in the public offices from situations 
usually held for life, and conferring them on his needy 
countrymen. Instead of allowing the public to see the 
falsity, and to be disgusted with the ribaldry, of Wilkes's 
paper, the " NORTH Briton," set up against him, he 
seems to have resolved to verify its assertions while he 
wished to inflict upon the author the heaviest penalties 
of the law. Finally, he threw the whole of England 



1763-J LORD MANSFIELD. 361 

into a flame by rashly bringing forward the cider tax, 
and obstinately persisting in it. Still he was in the pos- 
session of royal favor and parliamentary majorities, al- 
though his colleagues ventured to remonstrate with him 
in private, and Lord Mansfield even publicly threw out 
some hints intimating that there was not an entire co- 
incidence of opinion between them. It was generally 
thought that he would long enjoy power. 

But all of a sudden he voluntarily resigned. In a let- 
ter which he wrote at the time, he mainly imputed his 
fall to the same man who had contributed to his eleva- 
tion. " Single," he said, "in a cabinet of my own form- 
ing, no aid in the House of Lords to support me except 
two peers (Lords Denbigh and Pomfret), both the Sec- 
retaries of State silent, and the Lord Chief Justice, tvliom 
I myself brought into office,^ voting for me, yet speaking 
against me, the ground I tread upon is so hollow, that I 
am afraid not only of falling myself, but of involving my 
royal master in my ruin. It is time for me to retire."''' 

Lord Mansfield continued a member of the Cabinet 
when George Grenville was placed at the head of the 
Treasury, but it seems hardly credible that he should 
have been present at its deliberations v/hen the proceed- 
ings were ordered to be taken against the printers and 
publishers of the North Briton, No. 45 : i. Those pro- 
ceedings were so likely to come before him judicially, 
that he must have been struck with, the impropriety of 
taking part in originating them. 2. The proceedings 
were so illegal and indiscreet, that, if present, he must 
have protested against them. 

The parties aggrieved avoided the Court of King's 
Bench, and sought redress in the Court of Common 
Pleas from Lord Chief Justice Pratt, who was upon the 
eve of acquiring the greatest degree of popularity ever 
enjoyed by an English judge. He liberated Wilkes from 
the Tower, on the ground of parliamentary privilege ; 
and declaring general warrants to be illegal, he obtained 

' I do not perfectly understand the meaning of this ; but he must be re- 
ferring to Lord Mansfield. Pratt was made Chief Justice soon after the 
accession of George III., but was not created a peer till July, 1765, by 
the Rockingham administration ; so that he could neither have voted 
nor spoken while Lord Bute was minister. 

* Adolphus, i. 117. 



362 REIGN OF GEORGE II. [1763— 

from juries very heavy damages for those who had been 
arrested, and whose papers had been seized on the sus- 
picion that they were concerned in printing or publish- 
ing the No. of the NORTH Briton which had been 
singled out for prosecution." 

The legality of general warrants, however, was brought 
before Lord Mansfield by the law officers of the Crown, 
who, in a case of Leach v. Money, tendered a bill of ex- 
ceptions to Lord Camden's direction to the jury, that 
the general warrant against the printers and publishers 
of the North Briton afforded no justification for the de- 
fendant, a King's messenger, in arresting the plaintiff 
under it." 

The question having been very elaborately argued by 
the Attorney General De Grey on the one side, and 
Dunning (who now first distinguished himself) on the 
other. Lord Mansfield, although there was to be a sec- 
ond argument, stated the impression then upon his mind 
in favor of the doctrine laid down by Chief Justice 
Pratt :— 

" We are to consider," said he, "the validity of a war- 
rant in which no person is named or described. The 
common law, in many cases, gives authority to arrest 
without warrant, more especially when taken in the very 
act ; and there are many cases in which particular stat- 
utes have given authority to apprehend under general 
warrants — as warrants to take up ' loose, idle, and dis- 
orderly persons.' But here it is not contended that 
there could be an arrest at common law without war- 
rant, or that any statute gives a warrant in this general 
form. Therefore we must see whether, by the common 
law, such a warrant is valid ? At present it seems to me 
unfit that the information as to a particular individual 
having committed the offense specified in the warrant 
should be received by the officer, and that he, in his dis- 

' 2 Wilson, 151-160 ; 19 St. Tr. S82-1002 ; 2 Wilson, 206-244. 

' Sir James Burrow, with very amusing minuteness, describes the cere- 
mony of Lord Chief Justice Pratt coming in person into the Court of 
King's Bench, and acknowledging his seal to the bill of exceptions ; 
thus concluding: — "The Lord Chief Justice of the Common Pleas im- 
mediately retired, without sitting down ; and the Lord Chief Justice of 
this Court attended him till he was got past the Puisne Judge, but not 
quite to the door of the Court." — (3 Burr. 1694.) Nowhere is etiquett* 
so strictly attended to as in Westminster Hall. 



1765.] LORD MANSFIELD. 363 

cretion, should determine whether it is sufficient. The 
magistrate ought to decide and give certain directions 
to the officer ; the one acting judicially, the other min- 
isterially. So it stands on reason and convenience. 
Then as to authorities. Hale and all others hold such 
an uncertain warrant void, and there is no case or book 
to the contrary. It is said ' the usage sanctions general '. 
warrants,' and many such have been issued since the 
Revolution down to this time. But a usage to grow into \ 
law must be a general usage, communiter usitata et appro- \ 
data ; and which, after a long continuance, it would be 1 
mischievous to overturn. This is only the usage of a 
particular office — the Secretary of State's — and contrary 
to the usage of all other justices and conservators of the 
peace. However, let it stand over for a further argu- 
ment." 

When the case again came on, Charles Yorke, who in 
the mean time had been promoted to be Attorney Gen- 
eral, wishing to avoid a judgment against the Crown on 
the merits, admitted that a formal objection which had 
been made to the defense must prevail, and nothing 
more was said about GENERAL WARRANTS ; but ever 
since they have been considered illegal, and credit is due 
to Lord Mansfield for supporting principle against pre- 
cedent in this case, considering that the warrant in 
question had been issued by his own colleague.' 

He had a still nobler opportunity of raising his fame 
in reversing the outlawry of Wilkes. This profligate 
demagogue, after being liberated from the Tower, seeing 
no immediate means of exciting public sympathy, with- 
drew to Paris, and domiciled himself there. In the 
mean time, two criminal informations were filed against 
him by the law officers of the Crown ; one for writing 
and publishing the famous No. 43, of the NORTH Briton, 
and the other for writing and publishing an obscene and 
impious poem called an ESSAY ON Woman. Even before 
trial he was expelled the House of Commons for these 
alleged offenses, and he was afterwards found guilty on 
both informations in his absence. Process of outlawry 
then issued against him, and, as he did not appear to 
receive sentence, he was actually outlawed. 
' 19 St. Tr. icx)i-i028 ; 3 Burr. 1692-1743. 



364 REIGN OF GEORGE III. [1764— 

But on the dissolution of Parliament in the spring of 
the year 1768, the nation being frenzied by faction, he 
thought he might turn the extreme unpopularity of the 
Government to his own advantage, and, coming over 
from France while still an outlaw, he presented himself 
as a candidate to represent the city of London in the 
House of Commons. Although defeated there, he was 
returned by an immense majority for the county of 
Middlesex. Still it was necessary, before he could take 
his seat, that the outlawry should be reversed, and for 
this purpose he appeared in person in the Court of King's 
Bench. After several irregular proceedings, which he 
attempted with a view of entrapping or overawing the 
judges, they committed him to prison till the validity of 
his outlawry could be decided in due form of law, and 
they very properly refused several applications which 
were made to bail him. The mob were highly ex- 
asperated by the captivity of their idol ; attempts were 
made to rescue him ; there were dangerous riots in the 
metropolis ; some lives were lost ; and dreadful de- 
nunciations and threatenings were poured forth against 
Lord Mansfield. 

The hearing of Wilkes's case occupied several days , 

> Westminster Hall, Palace Yard, and the surrounding 

streets being filled by an innumerable multitude of 

Wilkites, ready to celebrate his triumph or to revenge 

his defeat.' At last judgment was to be pronounced. 

Lord Mansfield began, and in a very luminous manner 
went over the various grounds on which it had been 
argued by the defendant's counsel that the outlawry 
should be reversed, — all turning on mere technical 
learning, — and he showed satisfactorily that none of 
them were well founded. It was thought that he had 
nothing more to observe, except that the outlawry must 
be affirmed, when he thus proceeded in a strain of calm 
and dignified eloquence for ever to be had in admir- 
ation : — 

" These are the errors which have been objected ; 
and, for the reasons I have given, I cannot allow any 
of them. It was our duty, as well as our inclination, 

' No one in secret condemned their proceedings more than Wilkes him- 
self ; and he used afterwards to say that " he never was much of a Wilkite." 



1768.] LORD MANSFIELD. 365 

sedulousiy to consider whether upon any other ground, 
or in any other light, we could find an informality which 
we might allow with satisfaction to our own minds, and 
avow to the world. 

" But here let me pause ! — It is fit to take some notice 
of the various terrors being held out ; the numerous 
crowds v;hich have attended and now attend in and 
about the hall, out of all reach of hearing what passes 
in court ; and the tumults which, in other places, have 
shamefully insulted all order and government. Audacious 
addresses in print dictate to us, from those they call the 
people, the judgment to be given now, and afterwards 
upon the conviction. Reasons of policy are urged, from 
danger to the kingdom by commotions and general 
confusion. 

" Give me leave to take the opportunity of this great 
and respectable audience, to let the world know that all 
such attempts are vain. Unless we have been able to 
find an error which will bear us out to reverse the out- 
lawry, it must be affirmed. The constitution does not 
allow reasons of state to influence our judgments. God 
forbid it should ! We must not regard political conse- 
quences, how formidable soever they might be ; if re- 
bellion was the certain consequence, we are bound to 
say ' Fiat justitia, ruat coelum.' The constitution trusts 
the King with reasons of state and policy ; he may stop 
prosecutions ; he may pardon offenses ; it is his to 
judge whether the law or the criminal should yield. We 
have no election. None of us encouraged or approved 
the commission of either of the crimes of which the 
defendant is convicted ; none of us had any hand in his 
being prosecuted. As to myself, I took no part (in 
another place) in the addresses for that prosecution. We 
did not advise or assist the defendant to fly from justice ; 
it was his own act, and he must take the consequences. 
None of us have been consulted, or had anything to do 
with the present prosecution. It is not in our power to 
slop it ; it was not in our power to bring it on. We 
cannot pardon. We are to say what we take the law to 
be; if we do not speak our real opinions, we prevaricate 
with God and our own consciences. 

" I pass over many anonymous letters I have received. 



366 REIGN OF GEORGE III. [1708. 

Those in print are public ; and some of them have been 
brought judicially before the Court. Whoever the writers 
are, they take the wrong way. I will do my duty un- 
awed. What am I to fear? ItizXmendax infamia ixom. 
the press, which daily coins false facts and false motives ? 
The lies of calumny carry no terror to me. I trust that 
my temper of mind, and the color and conduct of my 
life, have given me a suit of armor against these arrows. 
If, during this King's reign, I have ever supported his 
i^overnment, and assisted his measures, I have done it 
without any other reward than the consciousness of 
doing what I thought right. If I have ever opposed, 
I have done it upon the points themselves ; without 
mixing in party or faction, and without any collateral 
views. I honor the King, and respect the people ; but 
many things acquired by the favor of either, are, in my 
account, objects not worth ambition. I wish popularity ; 
but it is that popularity which follows, not that which is 
run after ; it is that popularity which, sooner or later, 
never fails to do justice to the pursuit of noble ends \)j 
noble means. I will not do that which my conscience 
tells me is wrong upon this occasion, to gain the huzzas 
of thousands, or the daily praise of all the papers which 
come from the press. I will not avoid doing what I 
think is right, though it should draw on me the whole 
artillery of libels ; all that falsehood and malice can 
invent, or the credulity of a deluded populace can 
swallow. I can say, with a great magistrate, upon an 
occasion and under circumstances not unlike, ' Ego hoc 
animo semper fui, ut invidiam virtute partam, gloriam, 
non invidiam putarem.' 

" The threats go further than abuse ; personal vio- 
lence is denounced. I do not believe it ; it is not the 
genius of the worst of men of this country, in the worst 
of times. But I have set my mind at rest. The last 
end that can happen to any man never comes too soon, 
if he falls in the support of the law and liberty of his 
country (for liberty is synonymous to law and govern- 
ment). Such a shock, too, might be productive of public 
good ; it might awake the better part of the kingdom 
out of that lethargy which seems to have benumbed 
them ; and brin? the mad part back to their senses. 



I770-J LORD MANSFIELD 367 

as men intoxicated are sometimes stanned into so- 
biiety. 

" Once for all, let it be understood that no endeavors 
of this kind will influence any man who at present sits 
here. _ If they had any effect, it would be contrary to 
their intent ; leaning against their impression, might 
give a bias the other way. But I hope, and I know, that 
I have fortitude enough to resist even that weakness. 
No libels, no threats, nothing that has happened, no- 
thing that can happen, will weigh a feather against 
allowing the defendant, upon this and every other ques- 
tion, not only the whole advantage he is entitled to from 
substantial law and justice, but every benefit from the 
most critical nicety of form, which any other defendant 
could claim under the like objection. The only effect I 
feel from such outrages is an anxiety to be able to ex- 
plain the grounds upon which we proceed ; so as to 
satisfy all mankind that a flaw of form given way to in 
this case, could not have been got over in any other.'" 

He then pointed out the fatal objection to the pro- 
ceedings which had escaped the counsel for the defend- 
ant, and judgment was given that the outlawry should 
be reversed. This was heard with reverential silence. 

Wilkes had still to be sentenced upon the two convic- 
tions, and on a subsequent day he was fined ;^iooo and 
ordered to be imprisoned a year and ten months. He 
brought a writ of error in the House of Lords, contend- 
ing that the informations had not been duly filed, and 
that Lord Mansfield had improperly allowed them to be 
amended ; but the judgment of the Court of King's 
Bench was affirmed ; and, however much he might be 
aggrieved by the resolutions of the House of Commons 
unconstitutionally disqualifying him from being a repre- 
sentative of the people, he was bound to admit that 

' Lord Brougham says, — " It will be difficult to overrate the merit of the 
celebrated address to the public, then in a state of excitement almost un- 
paralleled, with which he closed his judgment upon the application to re- 
verse Wilkes's outlawi-y. Great elegance of composition, force of diction, 
just and strong but natural expression of personal feelings, a. commanding 
attitude of defiance to lawless threats, but so assumed and so tempered with 
the dignity which was natural to the man, and which here, as in all other 
occasions, he sustained throughout, all render this one of the most striking 
productions on record." — Stitesmen, i. 121. 



368 REIGN OF GEORGE III. \}l(>^ — 



i> 



justice was ever purely and impartially a.nd mildly ad- 
ministered to him in the courts of law.' 

Although Lcrd Mansfield had ceased to be a member 
of the Cabinet, he by no means withdrew from politics. 
Yet he never allied himself with any opposition party. 
Avowing himself to be a friend to prerogative, he at- 
tacked all measures that had an over-liberal aspect, from 
whatever quarter they came ; and while his principles 
were called arbitrary, it was allowed that he maintained 
them with independence. 

When the disputes began with America, he boldly 
contended both for the justice and the expediency of 
the tax iriiposed by the mother country on the colonies 
towards the expense of defending them. This opinion 
is now considered erroneous, but all must agree with 
him in condemning the vacillating policy then pursued, 
by which resistance was encouraged, repose and mutual 
confidence became impossible, insult was offered when 
injury was redressed, and placable petitioners were 
turned into inveterate rebels. 

The original Stamp Act, which was destined to pro- 
duce such mighty effects, when introduced by George 
Grenville passed both Houses almost without an obser- 
vation, and was unknown to the English public till they 
heard of the determination to disobey it. The first 
grand debate on the subject seems to have been when 
the Rockingham administration proposed resolutions for 
repealing it and for asserting the right to impose it. 
Lord Camden made his maiden speech in the House of 
Lords, supporting the first, but strongly condemning the 
last not only as imprudent but false ; — allowing the 
supremacy of the British legislature over the colonies 
for all purposes except taxation, but insisting that taxa- 
tion and representation must go together, and that, the 
colonies being unrepresented in our House of Commons, 
any attempt to impose a tax upon them was illegal. 
Lord Mansfield revised and published his powerful 
speech in answer. Thus he propounded his doctrine of 
virtual representation, which was afterwards so much 
relied upon : — 

" There can be no doubt but that the inhabitants of 

' 4 Burr. 2527-257S ; 19 St. Tr. 1075-113S. 



1768.1 LORD MANSFIELD. 369 

the colonies are represented in parliament, as the great- 
est part of the people of England are represented ; 
among nine millions of whom, there are eight who have 
no votes in electing members of parliament. Every ob- 
jection, therefore, to the dependency of the colonies 
upon parliament, which arises to it upon the ground of 
representation, goes to the whole present constitution 
of Great Britain ; and I suppose it is not meant to new- 
model that, too. People may form their own speculative 
ideas of perfection, and indulge their own fancies or 
those of other men. Every man in this country has his 
particular notions of liberty ; but perfection never did. 
and never can, exist in any human institution. For 
what purpose, then, are arguments drawn from a distinc- 
tion in which there is no real difference, of a virtual and 
actual representation ? A member of parliament, chosen 
for any borough, represents not only the constituents 
and inhabitants of that particular place, but he repre- 
sents the inhabitants of every other borough in Great 
Britain. He represents the city of London, and all the 
other commons of this land, and the inhabitants of all 
the colonies and dominions of Great Britain ; and is in 
duty and conscience bound to take care of their in- 
terests." 

Having treated the subject at very great length, in the 
vain hope of convincing all his hearers, and extinguish- 
ing that sympathy in England for the Americans which 
was the true cause of their resistance, he concluded with 
this impressive warning : — 

" You may abdicate your right over the colonies. 
Take care, my Lords, how you do so, for such an act will 
be irrevocable. Proceed then, my Lords, with spirit 
and firmness ; and, when you shall have established your 
authority, it will then be time to show your lenity. The 
Americans, as I said before, are a very good people, and 
I wish them exceeding well ; but they are heated and 
inflamed. The noble and learned Lord who preceded me, 
concluded with a prayer; I cannot conclude better than 
Ly saying to it Amen ! and in the words of Maurice, 
1 rince of Orange, concerning the Hollanders, ' God 
bless this industrious, frugal, and well-meaning, but 
easily-deluded people!'"' 

' Ilolliday, 242 ; 16 Pari. Hist. 173. 
Ill — IX. 



37° 



REIGN OF GEORGE III. [1766— 



Lord Mansfield, without entering into systematic op- 
position, had been much alienated from the Court both 
during Lord Rockingham's first administration, and that 
strange, piebald affair called " Lord Chatham's second 
administration," when the supposed prime minister, 
holding the privy seal, was generally excluded from all 
society, and knew nothing of public measures except 
from the newspapers. The Chief Justice's only consid- 
erable public exhibition during this period was his at- 
tack upon the unconstitutional doctrine of Lord Chat- 
ham and Lord Camden, that, in a case of great public 
emergency, the Crown could by law dispense with an act 
of parliament. The question arising from the embargo 
upon the exportation of corn, in consequence of appre- 
hended famine, he proved triumphantly that, although 
the measure was expedient and proper, it was a violation 
of law, and required to be sanctioned by a bill of indem- 
nity.' Thus the supposed favorer of prerogative gained 
a decided victory over those who prided themselves in 
being considered the advocates of popular rights. 

When Lord Chatham at last resigned. Lord Mansfield 
was called in to advise the Duke of Grafton, who was 
carrying on the government on Tory principles, persist- 
ing in the taxation of America by the British Parlia- 
ment, and in disqualifying Wilkes by a vote of the 
House of Commons. 

The two Houses being assembled in January, 1770, 
Lord Chatham, restored to the vigorous exercise of his 
faculties, opened a furious opposition to the Govern- 
ment ; and Lord Camden, still holding the great seal, 
cordially coalesced, with him. By Lord Mansfield's ad- 
vice, a resolution was formed to dismiss Lord Camden 
from his office. But a tremendous difficulty arose in 
finding a successor to him. The King and the Duke of 
Grafton repeatedly urged Lord Mansfield himself to be- 
come Chancellor ; but, whatever his inclination may 
have been when Lord Bute was minister, in the present 
rickety state of affairs he peremptorily refused the offer, 
and, on the contrary, suggested that the great seal 

' 16 Pari. Hist. 260. This doctrine, acted upon in 1S27, during the ad- 
ministration of Mr. Canning, and on several subsequent occasions, is now 
uaiversally taken for constitutional law. 



1770] LORD MANSFIELD. 



37» 



should be given to Charles Yorke, who had been afraid 
that he would snatch it from him. By Lord Mansfield's 
advice it was that the King sent for Charles Yorke, and 
entered into that unfortunate negotiation with him 
which terminated so fatally, — occasioning the compar- 
ison between this unhappy man, destroyed by gaining 
his wish, and Semele perishing by the lightning she had 
longed for.' The Chief Justice was again implored to 
condescend to become Chancellor, but he insisted upon 
the seal being put into commission; and he named three 
commissioners, over whom he was supposed to exercise 
unbounded influence, and whose decrees he was after- 
wards said to dictate." 

For some months he presided on the woolsack as 
Speaker of the House of Lords, and, in point of fact, 
exercised almost all the functions belonging to the office 
of Lord Chancellor. He maintained his ascendency 
even when, on the retreat of the Duke of Grafton, Lord 
North was, with his concurrence, placed at the head of 
the Treasury ; although this minister, as he established 
himself in the favor of the Sovereign and in the confi- 
dence of Parliament, gradually escaped from the thral- 
dom under which he had commenced his ministerial 
career. 

During the whole of the stormy session of 1770, the 
Chief Justice acted a very conspicuous part ; and con- 
flicts, similar to those between Pitt and Murray in the 
House of Commons, were nightly witnessed between 
Chatham and Mansfield in the House of Lords. 

The " Great Patriot," having with all his ancient en- 
ergy resumed his favorite post as leader of the Opposi- 
tion, and moved as an amendment, in the debate on the 
address, " that this House would take into consideration 
the proceedings of the House of Commons touching the 
incapacity of John Wilkes, Esq., whereby the electors 
of Middlesex were deprived of their free choice of a 
representative," — 

Lord Mansfield said : " I have never delivered any 
opinion on' the legality of the proceedings of the House 

' Horace Walpole's Letter to Sir H. Mann, Jan. 22, 1770. 
' Mr. Justice Bathurst (afterwards Lord Bathurst), Mr. Justice Aston and 
Mr. Baron Smyth. 



372 REIGN OF GEORGE III. [i77o- 

of Commons on the Middlesex election ; nor, whatever 
expectations may be formed, will I now declare my sen- 
timents. They are locked up in my own breast, and 
shall die with me. I wished to avoid all allusion to the 
subject, but the amendment moved is of a nature so ex- 
traordinary and alarming as to preclude the possibility 
of my remaining silent. I acknowledge the distracted 
state of the nation, but am happy to affirm, with a safe 
conscience, that it can in no respect be attributed to me. 
Declarations of law made by either House of Parliament 
are always attended with bad effects. I constantly op- 
pose them when I have an opportunity ; and never, in 
my judicial capacity, thmk myself bound to honor them 
with the slightest regard. There is a wide distinction 
between general declarations of law and particular de- 
cisions which may judicially be pronounced by either 
House on a case regularly submitted to their discussion 
and properly the subject of their jurisdiction. A question 
relating to the seat of one of their members can only be 
determined by that House, nor is there any appeal from 
their decision. Wherever a court of justice is supreme, 
as the House of Commons in matters of election, the 
determination of that court must be received and sub- 
mitted to as the law of the land. If there be no appeal 
from a judicial sentence, where shall it be questioned, 
and how shall it be reversed? I avoid entering into the 
merits of the late election from a conviction that your 
Lordships have no right to inquire into them. The 
amendment threatens the most pernicious consequences, 
as it manifestly violates every form and law of Parlia- 
ment, must stir up a quarrel between the two Houses, 
and may entirely destroy the balance of the constitution." 
Lord Chatham, although not entitled to address the 
House a second time, immediately rose, and spoke as 
follows, at first in a tone of constrained calm, but soon 
bursting into fury : — 

" So alluded to by the noble and learned Chief Justice 
of the King's Bench, I must beg the indulgence of your 
Lordships. Neman is better acquainted with his abilities 
and great acquirements than I am, or has higher respect 
for tliem. 1 luive had the pleasure of sitting with him 
in thj other ilouso of Parliament, and I have often felt 



I770-J LORD MANSFIELD. 373 

his power. But on the present occasion I meet him 
without fear. The constitution has already been openly 
invaded, and I have heard with horror and astonishment, 
that invasion defended upon principle. What is this 
mysterious power, undefined by law, which we must not 
approach without leave, nor speak of without reverence; 
which no man may question, and to which all men must 
subrnit ? I thought the slavish doctrine of passive obe- 
dience had long since been exploded ; and, when our 
kings are obliged to confess that their title to the crown 
and the rule of their government have other foundation 
than the known laws of the land, I never expected to 
hear a divine right or a divine infallibility attributed to 
any other branch of the legislature. Power without 
right is the most odious and detestable object that can 
be offered to the human imagination ; it is not only 
pernicious to those who are subject to it, but tends to its 
own destruction. It is, as Lyttleton has truly described 
it, res detestabilis et caduca. I acknowledge the just 
power, and reverence the true privileges, of the House 
of Commons. For their own sake I would prevent their 
assuming a jurisdiction which the constitution has denied 
them, lest, by grasping at an authority to which they 
have no right, they should forfeit that which they legally 
possess. But I affirm they have violated the constitution, 
and betrayed their constituents. Under pretense of de- 
claring law, they have made a law, and united in the same 
persons the offices of legislator and judge. What, then, 
are all the generous efforts of our ancestors — are all those 
glorious contentions by which they meant to secure to 
themselves, and transmit to their posterity, a known 
law, a certain rule of living, reduced to this conclusion, 
that, instead of the arbitrary power of a King, we must 
submit to the arbitrary power of a House of Commons ? 
If this be true, what benefit do we derive from the ex- 
change ? Tyranny is detestable in every shape, but in 
none is it so formidable as where it is assumed and 
exercised by a number of tyrants." — After highly ap- 
plauding the ancient nobility as founders of the con- 
stitution, and pointing out how their work was now 
threatened by the subtleties of lawyers, he thus con- 
cluded, casting a scornful glance at Lord Mansfield: 



374 REIGy OF GEORGE III. [1770. 

" Those iron barons (for so I may call them when com- 
pared with the silken barons of modern days ') were the 
guardians of the people ; yet their virtues were never 
engaged in a question of such importance as the present. 
A breach. has been made in the constitution; the battle- 
ments are dismantled ; the citadel is open to the first 
invader; the walls totter. What remains, then, but for 
us to stand foremost in the breach, to repair or perish in 
it?" 

Lord Mansfield did not attempt any reply, and the 
amendment was negatived without a division.' 

Nevertheless, Lord Chatham actually laid on the table 
of the House of Lords a bill to reverse the decision of 
the House of Commons by which Colonel Luttrell, with 
a small minority of votes, was declared the lawful repre- 
sentative for the county of Middlesex, on the ground that 
Mr. Wilkes, who had the majority, was ineligible. On 
this occasion he inveighed with increased violence against 
the arbitrary proceedings of the lower House, ex- 
claiming, — 

" Fye on't ! O fye ! 'tis an unweeded garden 
That grows to seed ; things rank and gross in nature 
Possess it merely." 

He then darted at another quarry : 

" My Lords, I am apprehensive — I am too appre- 
hensive — that these waters of bitterness have their 
source too near the palace. [Lord Pomfret called him 
to order, but he continued.] My Lords, I do not re- 
tract my words. Though I shall never abet the clamors 
of faction, I will ever stand forth an advocate for the 
just rights of the people ; and, while I am able to crawl 
upon the surface of the globe, I will pledge myself to 
their cause, conscious that it must be the cause of liberty 
and virtue. I esteem the King in his personal capacity ; 
I revere him in his political one and I hope he will 
show his regard for the principles which placed his 
family on the throne, by dissolving a House of Commons 
which has forgotten from whom it originated and for 
what purpose it was created, — sporting with the most 

' I know not whether he alluded to the black silk robe which Lord 
Mansfield and other law lords always wore when attending the House. 
' 16 Pari. Hist. 644-666. 



1 7 70-] LORD MANSFIELD. 



375 



sacred rights of the people, and abetting the tyranny 
of those whom it ought to control and to punish." 

Lord Mansfield's faculties, instead of being excited, 
seem to have been paralyzed by this ebullition. He 
was expected to follow immediately, but he remained 
silent, and, after a long pause, the friends of the bill 
•called out " Question ! " " Divide ! " He was at last 
forced up ; but laboring, I presume, under a conscious- 
ness of the badness of his cause, spoke in a style 
characterized as " frigid and pettifogging." He denied 
that Colonel Luttrell was in a minority, as that candidate 
had 296 votes to nothing; for the 1,143 votes nominally 
given for Mr. Wilkes, being given for a candidate who 
■was known to be disqualified, were " thrown away," and 
were no votes at all. Notwithstanding the instance of 
Sir Robert Walpole, who had been re-elected im- 
mediately after having been expelled, he maintained 
that, according to understood law and usage, a person 
expelled could not be re-elected in the same parliament, 
whatever right he might have after a dissolution. Having 
pretty well disclosed the secret which he said was to die 
with him, he unaccountably added, " What part I took 
previously in this matter shall ever remain with myself: 
I have, I must confess, deposited it in the breast of one 
of the royal family, but, resting secure in that confidence, 
it shall never be disclosed to another." He reca- 
pitulated his arguments to show that the judgment of 
'the House of Commons on this subject, right or wrong, 
■could not be questioned elsewhere ; and he tried to rally 
his spirits as he concluded with these observations : 
■"But suppose your Lordships coincide with the motion, 
— suppose we all agreed nem. con. to repeal the decision 
of the House of Commons, and to seat Mr. Wilkes as 
representative for Middlesex, instead of Colonel Lut- 
trell, — good God ! — what may be the consequence? The 
people are violent enough already, and to have the 
superior branch of the legislature join them would be 
giving such a public encouragement to their proceedings 
that I almost tremble while I even suppose such a scene 
of anarchy and confusion." 

These observations were very roughly handled by 
Lord Camden and other peers who followed ; and the 



376 REIGN OF GEORGE III. [1770 

Parliamentary History adds, " Lord Shelburne, in a 
severe speech upon the Ministry, endeavored to call up 
Lord Mansfield again, but it was impossible." The bill 
was rejected on the second reading, by a majority of 89 
to 43.' Nevertheless, the Opposition exulted on ac- 
count of the discomfiture of Lord Mansfield, which they 
reckoned the omen of future triumphs to their party, 
and they made a run at him, thinking still further to 
lower his authority, by sneering at him on all occasions, 
as well as by openly assailing him. But speedily his 
nerves were restrung, and he was again the bold andi 
formidable champion of the Government. Lord Chat- 
ham, in an unlucky moment venturing to treat the ques- 
tion of the Middlesex election legistically, had asserted 
in a very authoritative tone that " actions would lie 
against the whole House of Commons for having un- 
seated Wilkes, and deprived the electors of the county 
of Middlesex of their franchise." He was asked, " Who' 
are to be plaintiffs? and are the defendants to be sued 
as a corporation or as individuals? — how is the dis- 
tinction to be made between the members who voted in 
the majority- and in the minority? — by what evidence 
are their votes either way to be proved ? — how is the de- 
fense to be conducted ? — out of what fund are the dam- 
ages to be paid? — and how are illiterate juries thence- 
forth to be prevented from being judges of all the 
privileges of Parliament?" Lord Chatham's reckless 
disregard of such considerations caused exceeding joy tO'* 
Mansfield, who exclaimed, " The Lord has delivered 
him into, my hand!" and for a long time made this 
supposed right of action against the House of Commons 
the burden of his song." 

' 16 Pari. Hist. 955-966. 

' Veiy vague notions seem to have prevailed in those days respecting. 
legal remedies. A citizen of London brought to trial an action before Lord 
Maisfield to recover back the sum he had been obliged to pay for taxes to 
the King, on the ground that, the county of Middlesex not being properly 
represented, the House of Commons had no right to tax the people, and all 
Laws made by parliament were void. Of course he was speedily nonsuited, 
and reprimanded for his presumption. — (i Evans, 34.) During the passing, 
of the Reform Bill, in 1832, some hot-headed and absurd men talked of a 
refusal to pay taxes if the bill should be rejected ; but this they meant as, 
an act of resistance to authority, not as what they could justify in a court of 
law. 



I770-] LORD MANSFIELD. 



377 



Lord Chatham thought he would have his revenge by 
trying to raise a laugh against Lord Mansfield for his 
supposed sudden conversion to the liberal side, and for 
trying to please the mob by supporting the bill to take 
away the protection which peers' servants had hitherto 
enjoyed against being sued for their debts while Parlia- 
ment was sitting. The Chief Justice, after ably defend- 
ing the principle of the bill, asked, "Shall it be said that 
you, my Lords, the grand council of the nation, the 
highest judicial and legislative body of the realm, en- 
deavor to evade by privilege those very laws which you 
impose upon your fellow-subjects ! Forbid it, justice ! 
The law ought to be equally open to all: any exemption 
to particular men, or particular ranks of men, is, in a 
free and commercial country, a solecism of the grossest 
nature." There being a suppressed titter at the ex- 
pression of these sentiments by the defender of the dis- 
franchisement of Middlesex, he turned round to Lord 
Chatham, and, eyeing him with calm resolution, thus 
addressed him : — 

" It has been imputed to me by the noble Earl on my 
left hand that I, too, am running the race of popularity. 
If the noble Earl means hy popularity the applause be- 
stowed by after-ages on good and virtuous actions, I 
have long been struggling in that race, — to what pur- 
pose all-trying time can alone determine; but if he 
means that mushroom popularity which is raised with- 
~out merit, and lost without a crime, he is much mis- 
taken. I defy the noble Earl to point out a single 
action in my life where the popularity of the times ever 
had the smallest influence upon my determination. I 
thank God I have a more permanent and steady rule for 
my conduct — the dictates of my own breast. Those 
who have foregone that pleasing adviser, and given up 
their minds to the slavery of every popular impulse, I 
sincerely pity; I pity them still more if vanity leads 
them to mistake the shouts of a mob for the trumpet of 
Fame. Experience might inform them that many who 
have been saluted with the huzzas of a crowd one day, 
have received its execrations the next ; and many who, 
by the fools of their own times, have been held up as 
spotless patriots, have, nevertheless, appeared on the 



378 REIGN OF GEORGE III. [1769, 

historian's page, when truth has triumphed over delu- 
sion, the assassins of liberty. Why, then, can the noble 
Earl think I am ambitious of present popularity — the 
echo of flattery and counterfeit of renown ?" 

The bill passed without further observation,' and Lord 
Mansfield proved that, although he might be attacked 
unsparingly for the doctrines which he laid down, he 
had it in his power, by a proper display of spirit, to 
secure for himself the respect and courtesy due to his 
station. 

But he was greatly disappointed. if he expected that 
he was henceforth to enjoy tranquillity. He was now 
entering the most tempestuous period of his whole 
life. 

Junius, having with unbounded applause and entire 
impunity, libeled for a twelvemonth the Duke of Graf- 
ton, then at the head of the Treasury, and other distin- 
guished public characters, at last addressed a letter to 
the King himself, which, with some wholesome truths, 
contained insinuations and charges against his Majesty's 
conduct and personal honor which must have been very 
hurtful to his feelings, and tended strongly to deprive 
him of the esteem and affection of his subjects. Such 
an outrage must be condemned by all right-thinking 
persons, as not only contrary to the letter of the law, 
but as unconstitutional, mischievous and dastardly. 
The fiction that the King can do no wrong, ought to be 
respected as the foundation of responsible government, 
and favorable to liberty as well as order. Public acts 
should all be presumed to proceed from the advisers of 
the Crown ; and the private life of the Sovereign should 
be held still more sacred than that of the multitude, 
which factious opposition has agreed to spare. For 
calumny and insult he has not, like a subject, a remedy 
either by an appeal to the law or by taking the law into 
his own hand. 

The Attorney General very properly (I think) filed 
criminal informations against Woodfall, who first pub- 
lished the letter, and against Almon and Miller, who 
immediately reprinted it. A licenser is not to be en- 
dured, and the utmost freedom should be given to fair 

« 16 Pari. Hist. 974-973. 



«77o-J LORD MANSFIELD. 379 

discussion , but it betrays gross ignorance of the princi- 
ples by which order is to be preserved in society, to con- 
tend that no control is to be exercised by the magistrate 
over the publications which issue from the press. Not 
only is protection due to the characters of individuals, 
but no government can stand, — democratical or mon- 
archical, — whatever may be its from — against daily at- 
tacks upon its fundamental institutions, and daily ex- 
hortations to rise and subvert it. The right of insur- 
rection, which may be resorted to as the last remedy 
against tyranny and oppression, can never be recognized 
by any code, or pleaded in any court of justice. 

Rex V. Alnion v/as the first case brought to trial ; and 
here, without any denial that the letter was a libel, the 
great point made was, that the evidence was insufficient 
to render the defendant liable as publisher. A copy 
was produced which had his name in the title-page as 
publisher, and which had been bought at his shop from 
a person acting there as his servant. Sergeant Glyn, his 
counsel, urged that a man cannot be made a criminal by 
f.he act of his servant ; but Lord Mansfield ruled that a 
=iale by the servant vf3.s prima facie evidence of a publi- 
tation by the master, on the principle qui facit per aliitni, 
facit per se ; and the jury found a general verdict of 
■Guilty. In the ensuing term a motion was made for a 
new trial, on the ground that there was no proof of 
£riminal intention on the part of the defendant, or that 
he even knew of the letter from JUNIUS to the King 
having been in his shop, or even having been printed or 
written. 

Lord Mansfield : " I continue to think that the buying 
of a pamphlet in the open shop of a professed bookseller 
and publisher of pamphlets, from a person acting in the 
shop, is prima facie evidence of a publication by the 
master himself; but it is liable to be contradicted where 
the fact will permit, by contrary evidence tending to 
exculpate the master and to show that he was not privy 
nor assenting to it. Thus the evidence stands good till 
answered, and, not being answered at all, conclusively 
supports the conviction." — The other Judges concurred, 
and a rule to show cause was refused.' 

' Burr. 2686 ; 29 St. Tr. S03. 



38o REIGN OF GEORGE II. [1770^ 

This decision of the court was clamorously condemned 
by the newspapers, and was even commented upon very 
harshly by Mr. Dunning in the House of Commons:' 
but it is clearly according to law and reason ; for, if 
proof were required of the personal interference or ex- 
press sanction of the master, libels might be published 
with entire impunity, and the admission of evidence to 
rebut the presumption affords ample protection for in- 
nocence. Afterwards, in the " Reign of Terror," upon 
the outbreak of the first French Revolution, the doctrine 
was grossly perverted, and judges refused evidence to 
prove that libelous articles had been inserted in news- 
papers when the registered proprietor, who was prima 
facie answerable, was not only lying unconsciously sick 
in bed at the time of the publication, but had given ex- 
press orders to the acting editor that the articles should 
not be admitted. The recurrence of such iniquity is 
for ever prevented by " Lord Campbell's Libel Act," 
which saves the master from criminal responsibility for 
an unauthorized publication by the servant.' 

When the trial against Woodfall, the printer of the 
Morning Advertiser, came on, there being no doubt 
respecting the defendant's liability as publisher, an at- 
tempt was made to persuade the jury that the letter was 
not libelous ; and the grand dispute arose, whether 
this was a question for the jury, or exclusively for the 
court ? 

Lord Mansfield said, " All the jury had to consider 
was, whether the defendant had published the letter set 
out in the information, and whether the innuendoes im- 
puting a particular meaning to particular words, as that 

'the K ' meant his majesty King George IIL ; but 

that they were not to consider whether the publication 
was, as alleged in the information, ' false and malicious,' 
these being mere formal words ; and that whether the 
letter was libelous or innocent was a pure question of 
law, upon which the opinion of the court might be taken 
by a demurrer, or a motion in arrest of judgment." 

The jury retired, and after staying out many hours, 
having been brought in hackney coaches from Guildhall 
to Lord Mansfield's house in Blobmsbury Square, the 
' 16 Pari. Hist. 1279. » 6 & 7 Vic. c. 96, ». 7. 



»77o-] LORD MANSFIELD. 381 

foreman ga\e their verdict in these words, " Guilty of 
the printing and publishing ONLY." 

In the ensuing term, cross-rules were obtained by the 
Attorney General and by the defendant to ascertain the 
legal result of this finding; the one contending that it 
amounted to a conviction, and the other to an acquittal. 
After the cause had been very elaborately argued, Lord 
Mansfield said, — 

" Had the verdict been simply ' guilty of printing and 
publishing,' we should have thought that it ought to be 
entered generally for the Crown ; but we cannot exclude 
the word ' only,' and this appears to negative something 
charged in the information which the jury thought was 
submitted to them. Where there are more charges than 
one, 'guilty of some ONLY' is an acquittal as to the rest: 
but in this information there is no charge except for 
printing and ptiblis king : clearly there can be no judg- 
ment of acquittal, because the fact found against the 
defendant by the jury is the very crime they had to try. 
That the law is as I stated to the jury has been so often 
unanimously agreed by the whole Court, upon every re- 
port I have made of a trial for a libel, that it would be 
improper to make it a question now in this place. 
Among those who have concurred, the bar will recollect 
the dead and tJie living not now here.^ And we all again 
declare our opinion that the direction was right and ac- 
cording to law. Can any meaning be affixed to the 
word '■only which may affect the verdict? If they 
meant to say, ' they did not find it a libel,' or ' did not 
find the epithets false and malicious,' it would not affect 
the verdict, because none of these things were to be 
proved or found either way. It is impossible to say with 
certainty what the jury really did mean. Probably they 
had different meanings. It is possible some of them 
might mean not to find the whole sense put upon part 
of the words by the innuendoes in the information. If 
there be a meaning favorable to the defendant which by 
possibility the words will bear, he ought not to be con- 
cluded. Therefore we order the verdict to be set aside, 
and that there shall be a new trial." 

Woodfall was henceforth secure, for it was well known 

' I supt>ose meaining Mr. Justice Yates. 



i82 REIGN OF GEORGE III. [1770 

that no jury in the city of London would find a verdict 
against the publisher of Junius, whatever they might 
be told from the bench as to their functions or their 
duties. 

Before this judgment had been given, the information 
against Miller had been tried at Guildhall, when Lord 
Mansfield, in a very solemn and peremptory tone, spoke 
as follows : 

" I have the satisfaction to know, that if I should be 
mistaken in the direction I am about to give as to your 
duty on the present occasion, it will not be final and 
conclusive; but, under the full conviction of my own 
mind that I am warranted by the uniform practice of 
past ages, and by the law of the land, I inform you that 
the question for your determination is, whether the de- 
fendant printed and published a paper of such tenor 
and meaning as is charged by the information ? If the 
tenor had been wrong, the prosecution would at once 
have fallen to the ground ; but that is not objected to, 
nor is any meaning suggested by the defendant different 
to that supplied by the filling up the blanks in the in- 
formation. If you find the defendant not guilty, you 
find that he did not print or publish as set forth : if you 
find him guilty, you find that he did print and publish a 
paper of the tenor and meaning set forth in the indict- 
ment. Your verdict finally establishes that fact ; but 
you do not by that verdict find whether that production 
was legal or illegal : for should the defendant be found 
guilty, he may arrest the judgment, by insisting there 
is nothing illegal in this paper, and may carry this 
matter before the highest court of judicature in the 
kingdom." 

With strange incongruity he added, — 

" If you choose to determine the point of law, you 
should be very sure, for your conscience' sake, that your 
determination is law ; but if the law was in every case 
to be determined by juries, we should be in a miserable 
condition, as nothing could be more uncertain, from the 
different opinions of mankind." 

Half the population of London were assembled in the 
streets surrounding Guildhall, and remained several 
hours impatiently expecting the result. Lord Mansfield 



I770-] LORD MANSFIELD. 383 

had retired to his house, and many thousands proceeded 
thither in grand procession when it was announced that 
the jury had agreed. At last a shout, proceeding from 
Bloomsbury Square and reverberated from the remotest 
quarters of the metropolis, proclaimed a verdict of NOT 

Guilty." 

Lord Mansfield, in the course of these trials, had done 
nothing to incur moral blame. I think his doctrine, that 
the jury were only to find the fact of publication and the 
innuendoes, contrary to law as well as liberty. His grand 
argument for making the question " libel or not" exclu- 
sively one of law, that the defendant may demur or move 
in arrest of judgment, and so refer it to the court, ad- 
mits of the easy answer, that, although there may be a 
writing set out in the information as libelous which it 
could under no circumstances be criminal to publish, yet 
that an information may set out a paper the publication 
of which may or may not be criminal, according to the 
intention of the defendant and the circumstances under 
which it is published. Therefore, supposing judges to 
be ever so pure, upright, and intelligent, justice could 
not be done by leaving to them the criminality or inno- 
cence of the paper alleged to be libelous as a mere ab- 
stract question of law to be decided by reading the 
record. Nevertheless there were various authorities for 
the rule which Lord Mansfield had laid down ; and, in 
laying it down, he not only followed the example of his 
immediate predecessors, but he was supported by the 
unanimous opinion of his brethren who sat by him. 
There was no pretense for representing him as a daring 
innovator, who, slavishly wishing to please the Govern- 
ment, tried to subvert trial by jury and to extinguish 
the liberty of the press. Nevertheless he was very gen- 
erally believed to have acted corruptly," and having been 

' 20 St. Tr. 8g6. 

' The perverted state of the public mind we may learn from Horace 
Walpole s Memoirs of the Reign of George III., which were written at the 
time, not for any factious purpose, but to remain unpublished till a future 
age, and which accordingly did not see the light till the year 1845 : — " Lord 
Mansfield endeavored, by the most arbitrary constructions, to mislead the 
jury, telling them that they had nothing to do with the intention, nor with 
the words in the indictment — malicious, seditious, &c. The despotic and 
Jesuitic judge went farther. He said the business of the jury was to con- 
sider whether the blanks were properly filled up ? As to the contents of the 



384 REIGN OF GEORGE III. [1770- 

compared by vulgar vituperators to Jeffreys and Scroggs, 
he was thus addressed in more pointed, polished, and 
venomous terms by JUNIUS himself: — 

" Our language has no terms of reproach, the mind has 
no idea of detestation, which has not ali;eady been 
happily applied to you, and exhausted. Ample justice 
has been done by abler pens than mine to the separate 
merits of your life and character. Let it be my humble 
office to collect the scattered sweets till their united 
virtue tortures the sense. 

" Permit me to begin with paying a just tribute to 
Scotch sincerity wherever I find it. I own I am not apt 
to confide in the professions of gentlemen of that country ; 
and, when they smile, I feel an involuntary emotion to 
guard myself against mischief. With this general opinion 
of an ancient nation, I always thought it much to your 
Lordship's honor that, in your earlier days, you were 
but little infected with the prudence of your country. 
You had some original attachments which you took 
every opportunity to acknowledge. The liberal spirit 
of youth prevailed over your native discretion. Your 
zeal in the cause of an unhappy prince was expressed 
with the sincerity of wine, and some of the solemnities 
of religion. This, I conceive, is the most amiable point 
of view in which your character has appeared. Like an 
honest man, you took that part in politics which might 
have been expected from your birth, education, country, 
and connections. There was something generous in 
your attachment to the banished House of Stuart. We 
lament the mistake of a good man, and do not begin to 

paper, whether true or false, they were totally immaterial. No wonder 
juries were favorable to libelers, when the option lay between encouraging 
abuse and torturing law to serve tyranny ! It <Ud the jury honor that they 
preferred liberty to the voice of the Inquisition ! Not content with open 
violations of justice, he carried the jurors home with them, though without 
effect. What criminal could be more heinously guilty than such a judge ? " 
(Vol. iv. pp. 159, 160.) For the last insinuation, — that the Judge, not being 
able to prevail upon the jury to find a false verdict in open court, carried 
them home with him to corrupt them by a good dinner and plenty of wine, 
— had this foundation, that the jury, having been locked up at Guildhall 
without meat, drink, or fire, till they had agreed on their verdict, were, ac- 
cording to the usual practice, which in this case was expressly sanctionci by 
the coun'sel on both sides, brought l>efore the Judge, to deliver i' 'n his 
private aparimenN before the otficer^ of the court and all who wished lu be 
present. 



1 7 70-] LORD MANSFIELD. , ., 

detest him until he affects to renounce hi.-* ,•.•". i^les. 
Why did you not adhere to that loyalty vo^- once pro- 
fessed ? Why did you not follow the exanriole of your 
worthy brother ? With him you might have shared in 
the honor of the Pretender's confidence ; with him you 
might have preserved the integiicy ot your character; 
and England, I think, might hkve spared you without 
regret. Your friends will say, pcrnaps, that although 
you deserted the fortune of your liege lord, you have 
adhered firmly to the principles which drove his father 
from the throne; that, without openly supporting the 
person, you have done essential service to the cause, and 
consoled yourself for tht.' jogs of a favorite family by re- 
viving and re-establishing the maxims of their govern- 
ment. This is the way in which a Scotchman's under- 
standing corrects the error of his heart. My Lord, I 
acknowledge the truth of the defense, and can trace it 
through all your conduct. I see, through your whole 
life, one uniform pJan to enlarge the power of the 
Crown at the expense of the liberty of the subject." 

After specifying at very great length the supposed 
enormities of the Chief Justice in the prosecution of his 
plan, the writer comes to the recent trials for publishing 
his own letter to the King : — 

" Here, my Lord, you have fortune on your side. 
When you invade the province of the jury in matter of 
Jibel, you in effect attack the liberty of the press ; and, 
with a single stroke wound two of your greatest enemies. 
In other criminal prosecutions the malice of the design 
is confessedly as much the subject of consideration to a 
jury as the certainty of a fact. If a different doctrine 
prevails in the case of libels, why should it not extend to 
all criminal cases ? why not to capital offenses ? I see 
no reason (and I dare say you will agree with me that 
there is no good one) why the life of the subject should 
be better protected against you than his liberty or prop- 
erty. Why should you enjoy the full power of pillory, 
fine, and imprisonment, and not be indulged with hanging 
or transportation ? " 

Having amply discussed this legal question and 
several others, he makes the following observa- 
tions on Lord Mansfield's political position, which we 
ni. — 25. 



386 REIGN OF GEORGE III. [1770. 

shall see had a speedy influence upon ministerial ar- 
rangements : — 

" Yet you continue to support an Administration which 
you know is universally odious, and which on some oc- 
casions you yourself speak of with contempt. You 
\vould fain be thought to take no share in government, 
while, in reality, you are the mainspring of the machine. 
Here, too, we trace the little, prudential policy of a 
Scotchman. Instead of acting that open, generous pait 
which becomes your rank and station, you meanly skulk 
into the closet, and give your Sovereign such advice 
as you have not spirit to avow or defend. You se- 
cretly engross the power while you decline the title of 
minister ; and though you dare not be Chancellor, yoiu 
know how to secure the emoluments of the office. Are 
the seals to be for ever in commission that you may 
enjoy five thousand pounds a year ? " 

The writer concludes with strongly advising Lord 
Mansfield not to make this letter the subject of criminal 
informations, like his letter to the King, as " the prose- 
cution of an innocent printer cannot alter facts nor refute 
arguments." 

De Grey, the Attorney General, was eager for pro- 
ceeding ex officio against the DAILY ADVERTISER, and 
all the newspapers which had copied this audacious 
invective against the Chief Justice, urging that the ad- 
ministration of the laws must speedily come to an end 
if the first magistrate in Westminster Hall could be thus 
insulted on his tribunal with impunity. The Chief 
Justice himself, however, thought it more discreet to 
avoid a personal conflict, and not to keep alive the topics 
respecting his early history and political career which 
Junius had so cunningly and invidiously introduced. 
He declared, therefore, " that he would confide in the 
good sense of the public and the internal evidence of his 
conscience." 

But he felt the scandal of his remaining so loi g 
Speaker of the House of Lords, with a high salary, in 
addition to that of Chief Justice, and of keeping the 
seals in commission for a longer time than had been 
known since the reign of William HL The difficulty was 
to find a Chancellor. The fittest man would have been 



I770-] LORD MANSFIELD. 387 

Dunning, who had accepted the office of Solicitor Gen- 
eral General under the Duke of Grafton ; but he was 
known to be an enemy both to the Chief Justice and to 
his principles. 

These perplexities were increased by his alleged en- 
croachment on the rights of juries being brought before 
Parliament. Sergeant Glyn made a motion in the House 
of Commons for " a committee to inquire into the pro- 
ceedings of the Judges in Westminster Hall, particu- 
larly in cases relating to the liberty of the press ;" 
— when, in the course of a long debate, the conduct of 
the Chief Justice was severely censured not only by the 
mover but by Dunning and Burke, while it was stoutly 
defended by De Grey the Attorney General, Thurlow 
the Solicitor General, and Charles Fox, still a courtier.' 

In the House of Lords there was a close compact be- 
tween Lord Chatham and Lord Camden against Lord 
Mansfield ; and he had no one to give him the slightest 
assistance in debate, although on a division he had 
numbers on his side. In the course of a renewed dis- 
cussion which now took place on the Middlesex election. 
Lord Chatham " made a digression upon the modern 
manner of directing a jury from the bench, and giving 
judgment upon prosecutions for libels."" 

Lord Mansfield : " It is extremely painful, my Lords, 
where a man is publicly attacked, not only to have pre- 
judice to contend with, but ignorance ; I say ignorance, 
because, highly as I respect the abilities of my accuser 
in other matters, this is a point on which he is entirely 
destitute of information ; indeed, so destitute, that, were 
I not apprehensive my silence might be liable to mis- 
construction, I should not have distinguished him with 
the attention of a reply. The noble Lord is pleased to 
say that the constitution of the country has not only 
been wounded in the House of Commons in the material 
right of election, but in the Court of King's Bench by 
the immediate dispensers of the law. His lordship tells 
the House that doctrines no less new than dangerous 
have been inculcated in this court, and that particularly 

' 16 Pari. Hist. 1211-1302. 

' Ibid. 1302. We only leam the particulars of the charge from th« 
answer, which is given at length. 



388 REIGN OF GEORGE III. [1770. 

in a charge which I delivered to the jury on Woodfall's 
trial my directions were contrary to law, repugnant to 
practice, and injurious to the dearest liberties of the 
people. This is an alarming picture, my Lords ; it is 
drawn with great parade, and colored to affect the pas- 
sions amazingly. Unhappily, however, for the painter, it 
wants the essential circumstance of truth in the design, 
and must, like many other political pictures, be thrown, 
notwithstanding the reputation of the artist, among the 
miserable daubings of faction. So far, my Lords, is the 
accusation witli(0ut truth, that the directions now given 
to juries are the same that they have ever been. There 
is no novelty introduced,- -no chicanery attempted ; nor 
has there till very lately been any complaint of the in- 
tegrity of the King's Bench. When, indeed, the abettors 
of sedition found that the judges were neither to be 
flattered from their duty by fulsome adulation, nor in- 
timidated by the daring voice of licentiousness — when 
they found that Justice was not afraid of drawing her 
sword against the greatest favorite of an inconsiderate 
multitude — they had no resource but to impeach the 
probity of her ministers ; to acknowledge the equity of 
any sentence against themselves would be to give up 
their pretensions to patriotism. What, therefore, was 
to be done ? To traduce the judges, — to represent them 
as the servile tools of every arbitrary minister, — to hold 
out every criminal as a martyr to the public good, and 
to excite a general abhorrence of all legal subordina- 
tion." 

Having vindicated himself at great length by a review 
of the authorities and arguments connected with the 
case, he said he had directed juries in the same manner 
for fourteen years, without any objection being made 
to the rule laid down, although he had often requested 
that if any doubt existed the opinion of a higher court 
might be taken. He thus concluded : — 

"Judges, my Lords, cannot go ?stray from the ex- 
press and known law of the land. They are bound by 
oath punctually to follow the law. I have ever made it 
the rule of my conduct to do what was just ; and, con- 
scious of my own integrity, am able to look with con- 
tempt upon libels and libelers. Before the noble Lord, 



I770.J LORD MANSFIELD. 38,, 

therefore, arraigns my judicial character, he should make 
himself acquainted with facts. The scurrility of a news- 
paper may be good information for a coffee-Tiouse politi- 
cian ; but a peer of parliament should always speak from 
higher authority; though, if my noble accuser is no 
more acquainted with the principles of law in the present 
point than in what he advanced to support the motion 
where he told us an action would lie against the House 
of Commons for expelling Mr. Wilkes, I am fearful the 
highest authorities will not extend his ideas of juris- 
prudence nor entitle him to a patient hearing upon a 
legal question in this assembly." 

Lord Chatham tried to reply, but could make nothing 
of his action for damages against the House of Com- 
mons, and was obliged to retreat upon the Middlesex 
election, which he said " he should consider the alarm- 
bell of Hberty; ringing it incessantly till he roused the 
people to a proper sense of their injuries." 

Lord Camden then came to the rescue, and gave a 
flagrant instance of the little reliance to be placed on 
the law laid down in debate by experienced lawyers ; 
for he stoutly argued that the action against the House 
of Corrimons might be maintained : — 

" The noble and learned Lord on the woolsack has 
been pleased to sneer at my illustrious friend on account 
of his unacquaintance with the law, in saying that ' an 
action for damages lies against the House of Commons 
for disfranchising the county of Middlesex.' The noble 
and learned Lord, however, triumphs without a victory. 
If he supposes the laws of this country founded on jus- 
tice, he must acknowledge the propriety of the very ob- 
servation which excites his ridicule. Will he venture to 
say that, in seating Colonel Luttrell, the freeholders 
have not been grossly and dangerously injured ? Will 
he venture to say that, being injured, they have not a 
legal claim to redress? — a title to compensation at the 
hands of a jury for the wrong they have sustained ? He 
knows they have ; he cannot deny their claim, unless he 
places the simple resolution of the other House entirely 
above the established law of the land, and tells us that 
the lowest estate of parliament is constitutionally war- 
ranted to annihilate the constitution. With respect to 



390 REIGN OF GEORGE III. [1770. 

the direction of the noble and learned Lord on the wool- 
sack, which my illustrious friend has referred to, I think 
it would be premature to give any opinion till we have 
it before us. If we can obtain this direction, and obtain 
it fully, I shall very readily deliver my opinion upon the 
doctrines it inculcates ; and if they appear to me con- 
trary to the known and established principles of the 
constitution, I shall not scruple to tell the author of his 
mistake boldly and openly in the face of this assembly." 

A motion of adjournment made by the Duke of Graf- 
ton, as the organ of the Government, was carried by a 
large majority.' All present felt that Lord Mansfield 
had decidedly the advantage in this encounter, and that 
he had only to enjoy his victory. He wisely remained 
silent for the rest of the evening; but, elated with the 
compliments he received in Westminster Hall, he next 
day intimated that he had something of importance to 
bring to the notice of the House, and moved that their 
Lordships should be summoned to receive the commu- 
nication. 

On the appointed day there was an unusually large 
attendance of Peers. It was generally believed that the 
Lord Chief Justice was going to move a vote of censure 
on Lord Chatham and Lord Camden for calumniating 
the Judges, and the coming passage of arms between 
them was expected to be more dazzling than any ever 
before witnessed. But, oh ! miserable disappointment ! 
After a long pause, during which all eyes were fixed 
upon Lord Mansfield, he at last jrose and said, — " My 
Lords, I have left a paper with the clerk-assistant of this 
House, containing the judgment of the Court of King's 
Bench in the case of The King against Wood/all, and any 
of your Lordships who may be so inclined may read it 
and take copies of it." To the astonishment of the 
audience, he resumed his seat without making any mo- 
tion or uttering a syllable more. 

Lord Camden : " Does the noble and learned Lord on 
the woolsack mean to have his paper entered on the 
journals, or to found any motion upon it hereafter?" 

Lord Mansfield: " No, no ! Only to leave it with the 
clerk." 

' 52 to 20. 



t77o-] LORD MANSFIELD. s^ji 

The House then proceeded toother business; and 
some Peers who had a curiosity to know the contenh^of 
Lord Mansfield's paper found it entitled, " Copy of tlie 
unanimous Opinion of the Court of King's Bench in the 
case of the King against Woodfall, and read by the Lord 
Chief Justice on the 20th of November, 1770." 

Next day, at the sitting of the House, Lord Camden 
said, — 

" My Lords, I consider the paper delivered in by the 
noble and learned Lord on the woolsack as a challenge 
directed personally to me, and I accept it ; he has 
thrown down the gauntlet, and I take it up. In direct 
contradiction to him I maintain that his doctrine is not 
the law of England. I am ready to enter into the de- 
bate whenever the noble Lord will fix a day for it. I 
•desire and insist that it may be an early one. Mean- 
while, my Lords, I must observe that, after having con- 
sidered the /(2/^r with the utmost care, I have not found 
it very intelligible. There is one sense of the words' in 
which I might agree ; but there is another sense which 
may be imputed to them, and which they naturally bear. 
If this be what the noble and learned Lord will stand 
by, I am ready to prove it illegal and unconstitutional. 
I therefore beg leave to propose the following questions 
to the noble and learned Lord, to which I require cat- 
egorical answers, that we may know precisely the points 
we are to discuss : — 

" I. Does the Opinion mean to declare that upon the 
general issue oi not guilty, in the case of a seditious libel, 
4he jury have no right by law to examine the innocence 
or criminality of the paper if they think fit, and to form 
their verdict upon such examination ? 

"2. Does the Opinion mean to declare tjiat in the 
case above mentioned, where the jury have delivered in 
their verdict guilty, this verdict has found the fact only, 
and not the law ? 

" 3. Is it to be understood by this opinion that if the 
jury come to the bar and say that they find the printing 
and publishing, but that the paper is no libel, the jury 
are to be taken to have found the defendant guilty gen- 
erally, and the verdict must be so entered up ? 

"4. Whether the Opinion means to say that if the 



39^ 



REIGN OF GEORGE III. [17:°— 



judge, after giving his opinion of the innocence or crim- 
inality of the paper, should leave the consideration of 
that matter, together with the printing and publish- 
ing, to the jury, such a direction would be contrary to 
law ?" 

Lord Mansfield (looking very unhappy) : " I have the 
highest esteem for the noble and learned Lord who thus 
attacks me, and I have ever courted his esteem in re- 
turn. From his candor I had not expected this treat- 
ment.' I have studied the point more than any other 
in my life, and have consulted all the Judges on it ex- 
cept the noble and learned Lord, who appears to view 
it differently from all others. But this mode of ques- 
tioning me takes me by surprise, k is unfair. I will 
not answer interrogatories." 

Lord Chatham: ''' Interrogatories T Was ever any- 
thing heard so extraordinary ? Can the noble and 
learned Lord on the woolsack be taken by surprise 
when, as he tells us, he has been considering the point 
all his life, and has taken the opinions of all the Judges 
upon it?" 

Lord Camden : " I am willing that the noble and 
learned Lord on the woolsack should have whatever 
time he deems requisite to prepare himself, but let him 
name a day when his answers may be given in, and I 
shall then be ready to meet him." 

Lord Mansfield : " I am not bound to answer, and I 
will not answer, the questions which the noble and 
learned Lord has so astutely framed and so irregularly 
administered ; but I pledge myself that the matter shall 
be discussed." 

Duke of Richmond : " I congratulate your Lordships, 
upon the noble and learned Chief Justice of the King's 
Bench having at last pledged himself to the point." 

Lord Mansfield (much embarrassed) : " My Lords, I 
did not pledge myself to any particular point ; I only 
said I should hereafter give my opinion. And as to fix- 
ing a day, I said ' No ! I will not fix a day.' " ' 

' Horace Walpole says, " Lord Mansfield, with most abject soothings,. 
paid the highest compliments to Lord Camden." — Mem. Geo. III., ^ol. vi. 
p. 220. 

' 16 Pari. Hist. 1321 ; Walp. Mem. Geo. III., vol. iv. pp. 220-225. 



1772.] LORD MANSFIELD. 393 

He seemed so much, distressed that the matter was 
here allowed to drop, and it never was resumed.' 

Next morning Lord Chatham sent a note to Lord 
Camden, complimenting him on his transcendent doing, 
inquiring after his health, and adding, " I think I ought 
rather to inquire how Lord Mansfield does." " 

There is no denying that " the noble and learned 
Lord on the woolsack" did on this occasion show a great 
want of moral courage, and an utter forgetfulness of the 
excellent precept of Polonius,— " Beware of entrance to 
a quarrel : but, being in, bear it that the opposer may- 
beware of thee." 

All felt that a new disposition of the great seal could 
be delayed no longer, and, h pis aller, it was given to 
Mr. Justice Bathurst with the title of Chancellor. 
Although the remark made might have been anticipated, 
— " that the three Commissioners were allowed to be in- 
competent, and the whole business of the office was 
thrown on the most incompetent of the three, — I am 
afraid that Lord Mansfield was not sorry to see the wool- 
sack so occupied, hoping that his own ascendency, as the 
only great Tory law lord, might remain undiminished. 

However, his position there seems to have become 
very uncomfortable, and I can find no trace of any 
speech delivered by him in parliament for above four 
years. He was unable single-handed to cope with the 
formidable league of Lord Chatham and Lord Camden, 
assisted by the Duke of Richmond and other allies; and 
he must have regretted the shortsighted policy of 
choosing such a weak man for Chancellor as Lord Ba- 
thurst, who was incapable of giving him any aid or coun- 
tenance. 

Junius, from the acquittal of the printers till the be- 
ginning of the year 1772, when he made a treaty with 
the Government and for ever disappeared, exercised a 
tyranny of which we can form little conception, living 
in an age when the press is more decorous, and we are 
able by law to restrain its excesses. 

' Horace Walpole, who witnessed the scene, says : " The dismay and con- 
fusion of Lord Mansfield was obvious to the whole audience ; nor did one 
peer interpose a syllable in his behalf." 

' Original letter furnished to me by the present Marquess Camden. 



394 REIGN OF GEORGE III. [1770— 

I may refresh the recollection of the reader by copy- 
ing a few of the passages in which the victorious libeler 
seeks to revenge hintiself on Lord Mansfield for the vain 
attempt to bring him to justice. Thus, in the letter to 
the Duke of Grafton, describing the destitute condition 
of his Grace's party, — having said that " Charles Fox 
was yet in blossom," and that " Wedderburn had some- 
thing about him which "treachery could not trust,' — he 
observes, " Lord Mansfield shrinks from his principles . 
his ideas of government perhaps go farther than your 
own ; but his heart disgraces the theory of his under- 
standing." ' Commenting on Lord Mansfield's compli- 
juent to Lord Chatham for supporting the right of im- 
pressment, which he imputes to a design of injuring the 
^reat patriot, he says, " He knew the doctrine was un- 
popular, and was eager to fix it upon the man who is the 
tirst object of his fear and detestation. The cunning 
Scovchman never speaks truth without a fraudulent de- 
sign. Iij council he generally affects to take a moderate 
part. Besides his natural timidity, it makes part of his 
political plan never to be known to recommend violent 
measures. When the guards are called forth to murder 
their fellow-subjects, it is not by the ostensible advice 
of Lord Mansiield. Who attacks the liberty of the 
press ? Lord Mansfield ! Who invades the constitu- 
tional powers of juries? Lord Mansfield! Who was 
that judge who to save the King's brother, affirmed that 
a man of the first rank and quality, who obtains a ver- 
dict in a suit for ciiminal conversation, is entitled to no 
greater damages I'han the meanest mechanic? Lord 
Mansfield ! Who is it makes Commissioners of the 
Great Seal ? Lord Mansfield ! Who is it frames a de- 
cree for these Comnnssioners deciding against Lord 
Chatham?" Lord Mansfield ! Compared to these enor- 
mities, his original attachment to the Pretender (to whom 
his dearest brother was confidential secretary) is a virtue 
of the first magnitude. But the hour of impeachment 
will come, and neither he nor Grafton shall escape me." ' 

' 22d June, 1771. 

' Alluding to an absurd calumny W\\ a wrong decision of the Lords Com- 
missioners about the Pynsant estate, aiterwards reversed in the House of 
Lords, was maliciously framed by LorJ Maa.j,eld. 

' 5th October, 1771. 



• 772-J LORD MANSFIELD. 



395 



Then arose the grand controversy about Lord Mans- 
field's power to bail Eyre, charged Avith theft, in which 
Junius was egregiously in the wrong — clearly showing 
that he was not a lawyer, his mistakes not being design- 
edly made for disguise, but palpably proceeding from an 
ignorant man affecting knowledge. Thus he urges Lord 
Camden, whom he accuses of remissness, to prosecute 
and to punish the delinquent Judge: " When the con- 
test turns upon the interpretations of the laws, you can- 
not, without a formal surrender of all your reputation, 
yield the post of honor even to Lord Chatham. Con- 
sidering the situation and abilities of Lord Mansfield, 
I do not scruple to affirm, with the most solemn appeal 
to God for my sincerity, that, in my judgment, he is the 
worst and most dangerous man in the kingdom Thus 
far I have done my duty in endeavoring to bring him to 
punishment. But mine is an inferior ministerial office 
in the temple of justice. I have bound the victim and 
dragged him to the altar." ' 

There were many consultations between Lord Mans- 
field and his friends how these atrocious libels should be 
dealt with. Sir Fletcher Norton strongly recommended 
a prosecution, and even a summary application to com- 
mit the printer, and the author if he could be got at, for 
a contempt of court ; but this advice was rejected, being 
supposed to be prompted by a desire to bring the party 
libeled into greater disgrace, so that he might be forced 
to resign, and that the adviser, who had for many years 
been impatient to be put on the bench (although he never 
accomplished his object), might succeed to the vacant 
Chief Justiceship. There appeared in the DAILY AD- 
VERTISER a very able paper, signed Zeno, in defense of 
Lord Mansfield against all the charges JUNIUS had 
brought against him, which was supposed to have been 
written by Lord Mansfield himself; but it only drew 
forth a more scurrilous diatribe in the shape of a letter 
to Zeno from PhilO-Junius, — and all hope of refuting 
or punishing' him was abandoned as hopeless. At last 
" the great boar of the forest," who had gored the King 
and almost all his Court, and seemed to be more formid- 
able than any " blatant beast," was conquered, — not by 

' January, 1772. 



395 



REIGN OF GEORGE JII. 



[i7?a 



the spear of a knight-errant, but by a little provender 
held out him, and he was sent to whet his tusks in a 
distant land. 

This certainly was a very great deliverance for Lord 
Mansfield, who had long been afraid at breakfast to look 
into the Daily Advertiser, lest he should find in it 
some new accusation, which he could neither passively 
submit to nor resent without discredit ; and although he 
might call the mixture of bad law and tumid language 
poured out upon him ribaldry, it had an evident effect 
in encouraging his opponents in parliament, and in 
causing shakes of the head, shrugs of the shoulders, 
smiles and whispers in private society, which could not 
escape his notice. 




CHAPTER XXXVII. 

CONTINUATION OF THE LIFE OF LORD MaNSFIELU TILL 
THE DEATH OF LORD CHATHAM. 

THE excessive violence of the attacks upon Lord 
Mansfield by JUNIUS had made their effect more 
transitory, and they were gradually forgotten 
amidst a succession of stirring events at home and abroad. 

In the autumn of 1774 he paid a visit to Paris, where 
his nephew. Lord Stormont, had by his interest been 
appointed ambassador, and had shown great energy in 
■counteracting the intrigues of the Duke d'Aguillon for 
French aggrandisement. Louis XVI. had just com- 
menced his inauspicious reign, and many other dis- 
tinguished Englishmen had come over to witness the 
festivities in honor of his accession. Lord Mansfield 
■was presented to the King, and to the young Queen, 
still " glittering like the morning star, full of life and 
splendor and joy." He was treated by both of them 
with marked civility ; for his reputation as a great magis- 
trate had spread over Europe, and his noble appearance 
and manners added to the interest which this had ex- 
cited.' Amidst the splendors of his receptions at Ver- 
sailles, little did he think he should live to hear the 
tidings of Louis and Marie Antoinette losing their heads 
on the scaffold. 

Now was the city of London convulsed by the dispute 
respecting the publication of parliamentary debates, — in 
the course of which the messenger of the House was 
committed to Newgate, and the Lord Mayor to the 
Tower. Events of stupendous magnitude were taking 
place in the East Indies, where a mercantile company, 
at first content with a store-house in which they might 
expose their wares to sale, had become masters of a 

' He was so much pleased with the recollection of this scene, that on his 
ccturn he h.ad his portrait painted in the costume which he then wore. 



398 REIGN OF GEORGE III. [1772— 

mighty empire. But it was America that chiefly absorbed 
the public attention. The scheme of taxing the colonies 
had been insanely resumed ; Franklin had been insulted 
by Wedderburn ; there had been riots at Boston ; co- 
ercion had been tried in vain ; a general spirit of re- 
sistance manifested itself from the St. Lawrence to the 
Mississippi, — and civil war was impending. The paltry 
squabbles for place which had prevailed since the re- 
signation of Lord Bute, till the appointment of Lord 
North as minister, were forgotten ; and the leaders of all 
parties, animated by nobler thoughts, deliberated upon 
the measures by which a sinking state might be saved 
from perdition. Lord Mansfield resumed his position 
a political leader, and was again the chief organ of the 
Government in the House of Lords. Lord Bathurst, the 
Chancellor, seldom spoke, and never with effect. The 
other holders of office in the Upper House were Lord 
Sandwich, Lord Hillsborough, Lord Gower, and Lord 
Dartmouth, who were respectable in debate, but very 
inferior to the occupiers of the opposition bench. Lord 
Chatham, Lord Rockingham, Lord Camden, and Lord 
Shelburne. On the one side the only hope held out was 
from determination, vigor, and severity ; while the 
other clung to gentleness, confidence, and conciliation, 
— without as yet for a moment admitting the possibility 
that the mother-country could be reduced to the necessity 
of renouncing her sovereignty over her transatlantic 
colonies. 

The first occasion when Lord Mansfield appeared as 
leader in this memorable struggle was upon the motion 
to agree to a joint address of both Houses to the King 
" lamenting the disturbances which had broken out in 
the province of Massachusetts, beseeching his Majesty 
to take the most effectual measures for enforcing due 
obedience to the laws and the authority of the supreme 
legislature, and assuring him of their resolution to stand 
by him at the hazard of their lives and fortunes. ' ' The 
House of Lords having got into sad confusion, and the 
Government being in danger of discomfiture from the 
imbecility of the Lord Chancellor, the Chief Justice rose 

' 18 Pari Hist. 223. 



1 775-] LORD MANSFIELD. 



399 



from a back bench and made a very long and able speech, 
a few passages of which still possess interest : — 

" My Lords,— We are reduced to the alternative of 
adopting coercive measures, or at once submitting to a 
dismemberment of the empire. Consider the question 
in ever so many lights, every middle way will speedily 
lead to either of these extremities. The supremacy of 
the British legislature must be complete, entire, and 
unconditional ; or, on the other hand, the colonies must 
be free and independent. The claim of non-taxation is 
a renunciation of your authority. If the doctrine be 
just, it extends to the right of separating from you and 
establishing a new republic. It is to the last degree 
monstrous and absurd to allow that the colonists are en- 
titled to legislate for themselves on one subject and not 
on all. If they have any such privilege, the defense of it 
would justify resistance ; and I have not yet heard any 
noble lord say that their resistance would not be re- 
bellion." ' ..." I admit the impolicy of the taxes 
imposed in 1767, which have been the cause of the 
troubles and confusion which we now deplore. They 
irritated the colonists, cramped our own commerce, and 
encouraged smuggling, for the benefit of our commercial 
rivals.'' But the course was to petition for ttieir repeal, 
and not to treat them as illegal. Concession now is an 
abdication of sovereignty. AH classes will feel severely 
the effects of war, and no one can answer for its events. 
The British forces may be defeated ; the Americans may 
ultimately triumph. But are you prepared to surrender 
without striking a blow ? The question being whether 
the right of the mother-country shall be resolutely as- 
serted or basely relinquished, I trust there can be no 
doubt that your Lordships are prepared firmly to dis- 
charge your duty, convinced that the proper season for 
clemency is when your efforts have been crowned with 
victory," 

Lord Camden unconstitutionally and pusillanimously 
disclaimed having had any concern in the measure of 

' However, in answer to Dr. Johnson's " Taxation on Tyranny " there 
came out soon after a pamphlet entitled " Resistance no Rebellion." 

' This was a skillful shot, for Lord Camden was then Chancellor, and 
Lord Chatham held the Privy Seal, and was non-inally prime minister, al- 
though secluded from pub^c business. 



400 REIGN OF GEORGE III. [1775. 

taxing America adopted by the administration to which 
he belonged, saying that " he was never consulted about 
it, and that he was at the time closely and laboriously 
employed in discharging the weighty functions of his 
office." 

Duke of Grafton : " My Lords, it is mean, and much 
beneath the dignity of one who acted in the exalted 
station of the noble and learned Lord, to try to screen 
himself from the disagreeable consequences of the 
measure now deplored, and to shift the blame from his 
own shoulders on those of others who, he knows, were 
no more the authors of it than himself. The measure 
was consented to in the Cabinet ; the noble and learned 
Lord sat on that woolsack while it passed through this 
House in all its stages. He was the very person who 
officially notified the royal assent to it, and is he now to 
tell the House that it passed without his approbation or 
participation ? With respect to the other noble and 
learned Lord, I rnust regret that the administration with 
which I was connected was the only one which, for a 
long course of years, had not the benefit of his assistance. 
Other administrations, no doubt, profited much by his 
experience and ability; and, if he had continued to- at- 
tend the Cabinet, I am sure his advice would always have 
been respectfully heard ; although, from doubts as to its 
being constitutional and expedient, it might not always 
have been followed." 

Lord Mansfield : " I feel this to be a direct attack upon 
me for improperly mixing in politics, and I must ex- 
culpate myself from the charge. I was a privy councillor 
during a part of the last reign, and I have been during 
the whole of the present. But there is a nominal council, 
and there is an efficient council called the CABINET. 
For several years I acted as a member of the latter ; 
and, consequently, deliberated with the King's minister. 
However, tt short time previous to the administration in 
which the noble Marquis opposite [Rockingham] pre- 
sided, and some considerable time before the noble Lord 
succeeded him in that department, I prayed his Majesty 
to excuse my further attendance ; and, from that day to 
the present, I have declmed to act as a member of the 
Cabinet. I have lived with every administration on 



'7 75-] LORD MANSFIELD. 



40 J 



equally good terms; I have never refused my advice 
when applied to : the noble Marquis must recollect 
several occasions when I gave him the best assistance 
my poor abilities were capable of. I was equally ready 
to assist the noble Duke ; and, if he had asked my 
opinion upon the taxes which, by his instrumentality, 
were imposed upon America, I should certainly have 
pronounced them impolitic. I opposed the repeal of 
the Stamp Act from a sense of public duty ; but I took 
no other part in opposing the Government, and I even 
returned a.hostile proxy that I might not appear to be 
encouraging others to obstruct its measures. I have 
never interfered unless for the good of my country, and 
no profit or emolument has ever accrued to me from 
being the member of any Cabinet." 

Lord Shelburne : "The noble and learned Lord who 
has just sat down endeavors to strengthen his bare as- 
sertion that he has never improperly interfered, by show- 
ing what little or no temptation he could have to inter- 
fere ; but the noble and learned Lord knows — every 
noble Lord in this House knows — a court has many al- 
lurements besides profit and emolument. He denies 
any obligations or personal favors whatever: but he will 
permit me to observe that smiles may do a great deal ; 
that, if he had nothing to ask for himself, he had friends, 
relations, and dependents, who have been amply pro- 
vided for — I will not say beyond their deserts, but this 
I may say, much beyond their most sanguine ex- 
pectations. Independent, however, of these con- 
siderations, I think the pride of directing the 
councils of a great nation to certain favorite pur- 
poses, and according to certain preconceived principles 
may tempt to great hazards, and to interferences 
which, upon an impeachment, it would be hard 
to justify. Measures of high importance being dis- 
claimed by the ostensible ministers who proposed 
them, we cannot tell by whom we are ruled, and we can- 
not be said to live under responsible government. 
Several bills of the last session for coercing our American 
brethren having been disallowed by the officers of the 
Grown who ought to have prepared them, it is natural for 
the public to look to a great law Lord, notoriously high in 
III. — 26. 



402 REIGN OF GEORGE III. [1775-^ 

the confidence of the present Cabinet (if not a member 
of it), with whose doctrines the harsh enactments of these 
bills so exactly agree." 

Lord Ma7ts field {nsmg in a great passion) : " I thought, 
my Lords, it had been the leading characteristic of the 
members ofthis assembly, contrasted with those of anoth- 
er who too often descend to altercations and personal 
reflections, always to conduct themselves like gentle- 
men ; but I see that rule departed from this evening for 
the first time. I charge the noble Lord who last ad- 
dressed the House with uttering the most gross false- 
hoods. I totally deny that I had any hand in preparing 
all the bills of the last session," and I am certain that 
the law officers of the Crown never asserted that they 
had no hand in them. But whether they had or had 
not is of no consequence to me, for I am sure the charge 
applied to me is as unjust as it is maliciously and in- 
decently urged." 

According to the PARLIAMENTARY History, " Lord 
Shelburne returned the charge of falsehood to Lord 
Mansfield in direct terms."" This scene makes the con- 
flicts approaching to personality which in our days 
sometimes take place, between law lords and other 
members of the House, appear almost courteous and 
orderly. I do not find that there was any apology, or 
that any of the parties were ordered into the custody of 
the Black Rod to prevent a breach of the peace. The 
House divided at two in the morning, — when the ad- 
dress was carried by a majority of 104 to 29, — and the 
following day passed over without any news of the ex- 
Chancellor or the Lord Chief Justice of the King's 
Bench having fought a duel in Hyde Park." 

The combat was speedily renewed in the House of 
Lords. America was the subject of almost daily dis- 
cussion ; and, till the vigorous Thurlow was substituted 
as Chancellor for the feeble Bathurst, the efficient de- 
fense of the measures of the Government rested on Lord 
Mansfield. He was not formally a member of the 

' Sic in the Parliamentary History (vol. xviii. p. 282), but he can hardly 
have used such language. This virould be, what he himself, in the Court of 
King's Bench, would have called " a negative pregnant," i. e. a negative 
pregnant with an affirmative, — admitting that he prepared the. bills dt 
fuitus agitur. '' Vol. xviii. p. 283. ' 18 Pari. Hist. 22i-2g8. 



1776.] LORD MANSFIELD. 



403 



Cabinet, but Lord North was in frequent communica- 
tion with him ; he had audiences of the King, and he 
was substantially a minister. 

He strongly urged (and so far he was right) that if 
there was to be a civil war it ought to be carried on by 
England with more vigor. When the bill to prohibit 
all intercourse with certain of the American states wav 
debated, he thus answered the argument that the meat, 
ure would produce great distress:— 

"Yet, my Lords, admitting all this to be true, woar 
are we to do ? Are we to rest inactive, with our arms 
folded, till they shall think proper to begin the a^-tack, 
and gain strength to act against us with effect ? We are 
in such a situation, that we must either fight or be pur- 
sued._ What a Swedish general in the reign ul Gustavus 
Adolphus said to his men, just on the eve of battle, is 
extremely applicable to us at present. Pointing to the 
enemy, who were marching down to engage him, said 
he, ' My lads, you see those fellows yonder ; if you do 
not kill them, they will kill you.' My Lords, if we do 
not get the better of America, America will get the bet- 
ter of us. We do not fear that they will attack us at 
home ; but consider what will be the fate of our sugar 
islands? what will be the fate of our trade?" 

He goes on at great length to argue that if the insur- 
gents obtained independence they would speedily wrest 
from us all our possessions in the West Indies, as well 
as on the continent of America, and that we should be 
utterly ruined by their great commercial prosperity : 
the doctrine still being entertained, — even by intelligent 
men, who never thought of reciprocity, or believed that 
goods exported or imported are paid for otherwise than 
by the precious metals, — that there is a limited and in- 
/ariable aggregate of commerce in the world ; and that 
in proportion as any nation has a large share of it, less 
is left for others.' 

The town was for a time relieved from such discus, 
sions by the trial of the Duchess of Kingston for bigamy, 
which was regarded as an amusing farce. Lord Mans- 
field, seeing the nature of this exhibition, and awart 
how it must terminate, ineffectually attempted to mitigatt 

' 18 Pari. Hist. 1 102. 



404 REIGN OF GEORGE .III. Li77S— 

the disgrace it must bring upon the administration of 
justice, by moving that — instead of Westminster Hail 
being fitted up for the occasion as if a sovereign were to 
be called to account for subverting the liberties of his 
people, or the governor of a distant empire become de- 
pendent on the Crown of England were impeached for 
oppression and misrule, — the amorous intrigues of this 
lady of fashion should be investigated in the small 
chamber in which the Peers then usually met. Several 
peers having urged that, from the dignity of the party 
accused, the more solemn mode of proceeding should 
be preferred, he said, — 

" I do not conceive that the charge against the lady 
has anything sufficient to distinguish it from many 
others tried at your Lordships' bar. In 1725 I was 
present myself when Lord Macclesfield was tried for a 
grievous offense at this bar; an offense, considering the 
office he then held, that of Chancellor of Great Britain, 
accompanied by several aggravating circumstances, for 
which he might have incurred a fine that would have 
affected perhaps the whole of his fortune, and, conse- 
quently, have ruined his family. The proceedings were 
by impeachment, — the most solemn mode of preferring 
an accusation known under our laws. The prosecution 
was not carried on by counsel, as this will be, but by 
managers of the House of Commons, many in number. 
All accusations by bill of attainder are carried on at this 
bar, and Lord Strafford lost his head on the event of a 
trial so conducted, the place of trial not being consid- 
ered one of the hardships he had to encounter.' If, 
then, trials affecting the life, fortune, and . honors of a 
peer of the realm have proceeded in the chamber of 
parliament, will your Lordships think that greater so- 
lemnity is due to a trial where conviction can lead to no 
punishment ? — for I must remind your Lordships that 
this is a clergiable offr nse, for which a peeress can only 
be admonished ' to sin no more, lest a worse thing befall 
her.' If She is brought to trial in Westminster Hall, the 
eyes of Great Britain and of all Europe will impatiently 
wait for the issue ; and what will be thought when a ver- 

' Lord Strafford's trial on the impeachment was in Westminster Hall, 
although it was on the bill of attainder that he suffered. — 3 St. Tr. 1413, 



I792-J LORD MANSFIELD. 



405 



of Guilty produces nothing but an admonition and a 
curtesy ?" 

However, the Peers would have the spectacle, and it 
terminated exactly as was here foretold.' 

Lord Mansfield, for his judicial services, deserved the 
highest distinctions that could be bestowed on him ; 
and by the part he took against the Americans he was 
specially endeared to George III., who entered into the 
contest and persevered in it with much more eagerness 
than any of his ministers. As a mark of royal favor, the 
Chief Justice had some time before this been created a 
Knight of the Thistle ; and now he was raised to a higher 
dignity in the peerage, with a limitation to preserve the 
title although he had no children, and to make it take 
precedence of the hereditary honors of his house. He 
was made Earl of Mansfield, of Mansfield in the county 
of Nottingham, with remainder to Louisa Viscountess 
Stormont and her heirs, by Viscount Stormont, the 
nephew of the new Earl. The lady was thus introduced 
because it had been erroneously decided that a British 
peerage could not be conferred upon a Scotch peer al- 
though he might inherit it from his mother. When this 
absurdity was, some years afterwards, corrected by a 
contrary decision, a new patent was granted to Lord 
Mansfield, in which he was designated Earl of Mans- 
field, of Caen Wood, in the county of Middlesex, with 
remainder to Viscount Stormont and his heirs. Thus 
two Earldoms of Mansfield were constituted — the latter 
of which, on the death of the first grantee, descended 
upon Viscount Stormont, — while the former was taken by 
the Viscountess, and enjoyed by her in her own right 
many years after her husband's death. 

On his first promotion in the peerage, the Earl of 
Mansfield received this congratulatory epistle from his 
old schoolfellow. Bishop Newton : — 

" Kew Green, Oct. 20th, 1776. 

■' My Lord, — ^You have long merited the highest honors 
which this country can bestow ; but it was not fitting 
that they should die with you : something should re- 
main as a monument to posterity. I beg leave, there- 
fore, to congratulate your Lordship, or rather my Lord 
' 18 Pari. Hist. 1112 • 20 St. Tr. 366-651. 



4o6 REIGN OF GEORGE III. [t776. 

Stormont, upon your additional titles. Nothing can be 
properly an addition to yourself. You may rank higher 
in the world, but you cannot rise higher in the opinion 
and esteem of all who know you, and particularly of, 
" My dear Lord, 
" Your Lordship's ever affectionate and 

" obedient servant, J. Brist." 

The following answer was returned, disclosing the pri- 
vate feelings of the writer on this occasion, and present- 
ing him in rather an amiable point of view : — 

" Kenwood, Oct. 22, 1776. 

" My dear Lord, — I am exceedingly flattered by your 
letter, which I have just received ; because I know the 
friendly sincerity of the heart from whence it flows. 
You do justice to my view in this creation. Lady Stor- 
mont is five months gone with child. If it please God 
to bless Lord Stormont with issue male, I wish, from a 
pardonable vanity because common, that they may rep- 
resent my name as their first title. The manner of con- 
ferring this mark did great honor, and consequently gave 
great pleasure, to 

" Your most affectionate, &c. 

" Mansfield." 

But we must now return to graver matters. Hostili- 
ties with America ere long began ; and, notwithstanding 
frequent appeals to the principles of freedom from Lord 
Chatham, Lord Camden, and the opposition leaders in 
the House of Commons, there can be no doubt that the 
war in its origin was popular, and that the vast majority 
of Englishmen approved of Lord Mansfield's exhorta- 
tions to crush rebellion and to preserve British ascend- 
ency. His sentiments harmonized even with those of 
the city of London, where Wilkes had fallen into con- 
tempt. Therefore, when called upon to try Home Tooke 
for a libel in taking part with the Americans, he felt none 
of the misgivings and apprehensions which had over- 
whelmed him on the trials of the printers of JUNIUS. 
The demagogue who now struggled to bring the Gov- 
ernment into odium, — notwithstanding his great acute- 
ness and power of sarcasm, — was not very successful in 
gaining public sympathy, — so that he was never able to 
rival Wilkes as the representative of a popular constit- 



I777-J LORD MANSFIELD. 



407 



uency, — and never had even a taste of parliament till, 
very late in life, he became the nominee of the capricious 
owner of a rotten borough, who hesitated some time 
between him and a negro. 

The charge against him was for writing and publishing 
an advertisement proposing a subscription " to be ap- 
plied to the relief of the widows, orphans, and aged 
parents of our beloved American fellow- subjects, who, 
faithful to the character of Englishmen, preferring death 
to slavery, were, for that reason only, inhumanly mur- 
dered by the King's troops at Lexington and Concord, 
in the province of Massachusetts." He conducted his 
defense in person against Mr. Attorney General Thur- 
low. His great object seems to have been to provoke 
Lord Mansfield to a sally of impatience, of which he 
might have taken advantage ; and he even cross-exam- 
ined some printers of newspapers respecting their having 
been " solicited not to insert any observations upon a 
late legal Earldom ;" but he was completely foiled, for 
the Chief Justice remained throughout calm and placid, 
and always felicitously seizing the right moment for the 
exercise of authority, gained an unsullied triumph. In 
summing up to the jury, he not only left to them his 
usual questions as to publication and the innuendoes, but, 
confident in their anti-Yankee feelings, he asked their 
opinion on the criminality of the alleged libel, saying, — 

" Read ! You will form the conclusion yourselves : 
' Our beloved American fellow-subjects,' — in rebellion 
against the state ! They are our fellow-subjects, but not 
so absolutely beloved without exception ! ' Beloved' to 
many purposes ; beloved to be reclaimed ; beloved to be 
forgiven ; beloved to have good done to them ; but not 
beloved to be abetted in their rebellion ! The informa- 
tion charges the libel to relate to the King's government 
and the employment of his troops. Read it, and see 
whether it does relate to them. If it does, what is the 
employment they are ordered upon ? The paper says, 
• to murder innocent subjects, because they act like Eng- 
lishmen and prefer liberty to slavery !' Why, then, what 
are they who gave the orders ? What are they who exe- 
cute them ? Draw the conclusion. Read this paper, 
and judge for yourselves. You will consider whether it 



4o8 REIGN OF GEORGE III. [1778. 

conveys a harmless innocent proposition for the good 
and welfare of this kingdom, the support of the legis- 
lative government and the King's authority according 
to law. Is the contest to reduce innocent subjects t© 
slavery ? and were those who fell fighting against the 
King's troops at Lexington really murdered {^s you have 
been told) like the unhappy victims who were massacred 
in their beds at Glenco ?" 

The jury, after a short deliberation, found a verdict of 
Guilty ; and the defendant was sentenced to a year's 
imprisonment, and to pay a fine of ;^200,.' 

But the hope of speedily crushing the Americans, 
which had animated Lord Mansfield, and had induced 
the great bulk of the nation warmly to support the 
policy of the Government, was cruelly disappointed^ 
Every fresh arrival showed the aspect of affairs beyond 
the Atlantic to be more and more alarming, and in the 
course of a few months came the stunning intelligence 
that General Burgoyne and his army had capitulated at 
Saratoga. The poignancy of Lord Mansfield's grief at 
seeing all his predictions falsified, and being reproached 
as one of the principal authors of the measures which 
had proved so disastrous, was greatly aggravated by the 
attempt to form a new administration, at the head of 
which was to be placed the man whom he most dreaded 
and most hated. His own office was secure, with all its- 
great emoluments ; but he was to lose power, which, 
notwithstanding his assertions and perhaps his belief ta 
the contrary, he fondly cherished ; and he must either 
go into opposition, which was uncongenial to his nature, 
or become the humble supporter of an imperious rival. 
He was relieved from these apprehensions by the failure 
of the negotiation with Lord Chatham v/hich had been 
entered into when France showed a determination to- 
take part with the Americans ; and he continued vigor- 
ously to support Lord North against all the proposals, 
which were pressed upon him for renouncing our suprem- 
acy over the colonies, or for making concessions to them, 
with a view to conciliation. Lord Chatham, who recom- 
mended tjhe latter course, still scorning the notion of 
American independence, seemed to become more for- 
' 20 St. Tr. 651-802. 



'778- LORD MANSFIELD. 



409 



midable in intellect as his bodily faculties decayed ; and, 
during_ his declamation against the employment of sav- 
ages with scalping-knives in carrying on the war, Lord 
Mansfield silently quailed under him, afraid of being 
blasted by the lightning of his wrath, while he spoke 
these scornful words : — " I do not call for vengeance on 
the heads of those who have been guilty ; I only recom- 
mend retreat : let them walk off, and let them make 
haste, or speedy and condign punishment will overtake 
them." 

It was indispensably necessary to meet such attacks 
with firmness, or to perish by them ; and when Lord 
Chatham announced his intention, notwithstanding 
severe illness, to be present on the Duke of Richmond's 
motion in the committee on the state of the nation, it 
was resolved that the friends of Government should 
answer him, — and Lord Mansfield, remembering con- 
flicts with his great rival in which he himself had the 
advantage, felt his courage revive. 

Fate had ordained that they should never have 
another conflict, The appointed day arrived. Lord 
Chatham appeared, and spoke some time with all his 
ancient fervor ; but he perished in the effort. When, in 
the garb of sickness, he was led into the House between 
his son and son-in-law, Lord Mansfield joined in the 
voluntary tribute of respect paid to him by standing up 
while he passed to his proper place. Having risen 
slowly and with difficulty to address the House, sup- 
ported under each arm by his relatives, the dying patriot 
took one hand from his crutch, and, raising it, and cast- 
ing his eyes towards heaven, he thus began : — " I thank 
God that I have been enabled to come here this day to 
perform my duty, and to speak on a subject which has 
so deeply impressed my mind. I am old and infirm — 
have one foot, more than one foot, in the grave ; — I 
am risen from my bed to stand up in the cause of 
my country — perhaps never again to speak in this 
House." Most who heard him were softened with pity, 
as well as struck with awe ; but Lord Mansfield appeared 
to be thinking only of the topics which were likely to be 
urged by the assailant, and the best arguments to be 
used in answering him. The exertion of the orator 



410 REIGN OF GEORGE III. [1778- 

proving too mighty for his enfeebled frane, he sank in a 
swoon, and the House was thrown into alarm and agi- 
tation,-^but Lord Mansfield so conducted himself as 
entirely to escape the charge of affected sorrow. 

We have the most authentic account of what then 
passed, in a letter written immediately after to the Duke 
of Grafton, who was absent, by Lord Camden, who had 
been sitting by the side of Lord Chatham, and who thus 
describes the catastrophe : — 

" He fell back upon his seat, and was to all appearances 
in the agonies of death. This threw the whole House 
into confusion ; every person was upon his legs in a 
moment hurrying from one place to another, some send- 
ing for assistance, others producing salts, and others re- 
viving spirits. Many crowding about the Earl to observe 
his countenance, all affected, most part really concerned ; 
and even those who might have felt a secret pleasure at 
the accident, yet put on the appearance of distress, ex- 
cept only the Earl of M., who sat still, almost as unmoved 
as the senseless body itself." ' 

An attempt has been made by a warm admirer and 
most eloquent eulogist of Lord Mansfield to rescue him 
from the charge of this supposed nonchalance, and fix it 
upon another : — " The Earl of M.," says Lord Brougham, 
" so discreditably mentioned in this letter, must have 
been Lord Marchmont. In the Lords' Journal for that 
day, April 7, 1778, he and Lord Mansfield are the only 
Earls of M. present ; and Lord Mansfield was wholly 
incapable of suffering such feelings to be seen on such an 
occasion." ° 

The Earl of Marchmont was present on this occasion, 
but I know not why insensibility should be imputed to 
him more than to his distinguished countryman ; and it 
is quite certain that his demeanor would have excited no 
attention, — that all mankind must have been anxious to 
observe the impression made by the death-blow of 
Chatham on an old rival,— and that Lord Camden, writ- 
ing to the Duke of Grafton, by " the Earl of M.," could 
mean no other than the Earl of Mansfield, whom they 
both knew so familiarly. Besides, I am not sure that the 

' See 19 Pari. Hist. 1012-105S. 
' Law Review, vol. ii. p. 316. 



177S.] LORD MANSFIELD. 



411 



imputation, though maliciously meant, ought seriously 
to lower the object of it in our esteem, for it is not pre- 
tended that he betrayed any satisfaction ; and, instead of 
idly proffering assistance, or hypocritically beating his 
bosom, he might have been thinking with some tender- 
ness of their first meeting as students at Oxford, or 
calmly considering how soon his own earthly career must 
be concluded. • 

It cannot be denied, however, that he acted an un- 
generous part in the proceedings which were proposed 
to do honor to the memory of the deceased, and to mark 
the public gratitude for his services in advancing the 
glory and prosperity of the country. Upon an actdress 
of the House of Commons, the King having given 
directions that the remains of the great patriot should 
be deposited in Westminster Abbey, Lord Shelburne 
gave notice of a motion in the House of Lords, that 
their Lordships should all attend the funeral. Although 
there was a strong canvass. Lord Mansfield could not 
make up his mind to vote either for it or against it. He 
pusillanimously absented himself; and, upon a division, 
the motion was negatived by a majority of one." 

If he thought that the Peers, in their aggregate 
capacity, should not pay such homage to an indi- 
vidual from whose opinions they had generally differed, 
he might, without suspicion of political inconsistency, 
have attended the solemnity as a private person, to show 
his respect for the splendid talents and acknowledged 
virtues of him whom he had known intimately when a 
boy, and with whom he had been engaged in a com- 
petition for honorable distinction above half a century. 
But while the Court could not resist the general impulse 
in favor of a public funeral, all true courtiers endeavored 
to diminish the effect of it ; and Lord Mansfield's name 
is not to be found in the list of those who saw consigned 
to the tomb the dust of the greatest orator and states- 
man England had produced for ages." , 

' Lords' Journals. 19 Pari. Hist. 1233. 

' " Lord Chatham's funeral was meanly attended, and Government inge- 
niously contrived to secure the double odium of suffering the thing to be 
done and of doing it with an ill grace." (Gibbon's Misc. Works, vol. i. p. 
538.) The Annual Register for 1778, however, says that " the funeral was 
attended by a great number of lords, mostly in the minority." 



412 REIGN OF GEORGE III. \\^^^. 

An opportunity soon occurred to him for relieving 
himself from the uneasy feelings which must have an- 
noyed him when he reflected on his paltry conduct. The 
bill for annexing an annuity of ;£'4,ooo a-year to Lord 
Chatham's title, which had passed the House of Conimons 
almost unanimously, was strongly opposed in the House 
of Lords ; and the Lord Chancellor, and other members 
of the party called the " King's Friendss" not only ob- 
jected to it on the score of economy, but made violent 
attacks on the career and character of the deceased Earl, 
— even depreciating his talents.' Lord Mansfield was- 
present, but remained silent.' I am afraid it is im- 
possible to doubt that on this and other occasions he 
displayed a want of heart, as well as of moral courage. — 
But we must not hate or despise him for these infirmities : 
if, to the great qualities which he actually possessed, he 
had added the boldness of Chatham and the friendly 
enthusiasm of Camden, he would have been too perfect 
for human nature. 

' Thurlow, in his coarse, bantering manner, concluded with a parody upon 
the stanza in Chevy Chase respecting the death of Percy : — 

" Now God be with him," said our King, 
" Sith 'twill no better be, 
1 trust I have within my realm 
Five hundred as good as he." 

' On a division, the numbers were, for the bill 42, against it II. I have 
not been able to find out with certainty how Lord Mansfield voted. There 
was a protest setting forth that " this may in after times be made use of as 
a precedent for factious purposes, and to the enriching of private families 
at the public expense ;" but this was not signed by Lord Mansfield, and 
only by one prelate and three temporal peers. — 19 Pari. Hist. 1233-125.S. 




CHAPTER XXXVIII. 

CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL 

THE CONCLUSION OF THE TRIAL OF 

LORD GEORGE GORDON. 



LORD MANSFIELD and his friends expected that 
after the death of Chatham he would have an un- 
bounded ascendency in the House of Lords ; but 
it is an undoubted fact that from this time his political im- 
portance greatly declined. He was not so much wanted 
as the champion of the Government, and the stimulus 
which excited him to his finest parliamentary displays 
was gone. Thurlow, firmly seated on the woolsack, 
proved himself a match in debate for any member of 
Opposition ; and he gallantly defended all ministerial 
measures, till the nation, universally become sick of the 
Avar which they had once so much approved, forced Lord 
North to resign, that a negotiation might be opened with 
•our revolted colonies as an independent state. 

I find only one speech of Lord Mansfield upon the 
American question after Lord Chatham's death ; and, 
strange to say, in this he recommends a coalition be- 
tween the parties into which the state was then divided: 
but we must recollect that he no longer dreaded seeing 
in council him whom he and the King so mortally hated, 
and that there was no chance of the Government being 
able to carry on the war without some great accession 
to its strength. At the meeting of parliament in No- 
vember, 1779, the Marquis of Rockingham, in opposing 
the address, moved an amendment which, after drawing 
a contrast between the happy state of affairs at the ac- 
cession of his Majesty and the lamentable one to which 
the nation was reduced, represented to his Majesty "if 
any thing could prevent the consummation of public 
ruin it could only be new councils and new counsellors.' 



414 



REIGN OF GEORGE III. [i77<> 



Lord Mansfield took a review of the different admin- 
istrations which had succeeded each other during the 
present reign ; showing that each one of them was as 
much answerable for the disaster now deplored as the 
present administration, in whose time they had actually 
occurred : — 

"The tax on tea," said he, "sowed the seeds of the 
present rebellion ; and that was imposed by the noble 
Duke in the blue ribbon, who now complains so bitterly 
of the measures of the Government. I will give no 
opinion at present whether it was a wise tax or not ; 
but it was sanctioned by the noble and learned Lord 
[Lord Camden] who has denounced with such bitterness 
all who have advised the Crown since he resigned : and 
a noble Earl, who may now be considered the most 
active leader of Opposition, then had a seat in his Ma- 
jesty's councils, and never openly objected to it. To 
suppose that he privately condemned, and yet appeared 
in parliament to support it, is an imputation that I 
would not throw upon him or upon any member of this 
assembly. The present Ministers neither passed the 
Stamp Act nor repealed it, nor imposed the tea duty nor 
induced the Americans to resist it. Why should they 
only be punished when the crime is common ? and why 
should they be punished by the true authors of the mis- 
fortunes laid to their charge ? But, my Lords, let us 
rather consider how the nation can be rescued from the 
perils which surround it. I say that nothing but a full 
and comprehensive union of all parties can effect its 
salvation. I am old enough to remember the country 
in very embarrassed situations— none, I acknowledge, 
like the present. I have seen violent party struggles — 
none so violent as the present. Nevertheless, I by no 
means despair." Having alluded to the arrangement 
made on the retirement of Sir Robert Walpole, and the 
formation of Lord Chatham's first administration, he 
continued : — " I had a hand in that negotiation, and 
what was the consequence ? Two persons only, after 
some fluctuation, were taken in ; yet by so immaterial a 
change the nation was satisfied, a coalition ensue.l, and 
the effect of that seasonable union was the immense ac- 
cession of territory made in the course of the late 



1780.] LORD MANSFIELD. 



415 



glorious war._ How far the temper of the nation or the 
state of parties may admit of a coalition at present, I 
will not pretend to determine ; but, my Lords, it is an 
event most earnestly to be desired, for the country re- 
quires the assistance of every heart and hand ; and with 
such co-operation, although I am far from desponding, 
I shall still anxiously await the event. My resolution 
is firm, but my confidence staggers." 

Still the Government was strong in point of numbers, 
and the amendment was negatived by a majority of 82 
to 41.' 

I now approach scenes which are most discreditable 
to the English nation, but in which Lord Mansfield ap- 
pears to the highest advantage. To explain why he was 
the special object of the fury of the fanatical mob headed 
by Lord George Gordon and for several days in posses- 
sion of the capital, I must go back to some of his de- 
cisions on questions connected with religion. He was 
actuated by the enlightened principles of toleration ; 
and, although a sincere friend to the Church of Eng- 
land, he steadily protected, by the shield of the law, 
both Dissenters and Roman Catholics from the assaults 
of bigots who wished to oppress them. 

Lord Mansfield was the first judge who extended the 
prerogative writ of mandamus to enforce the admission 
of a dissenting minister to an endowed chapel : saying, 

" The right itself being recent, there can be no direct 
ancient precedent ; but every case of a lecturer, preacher, 
schoolmaster, curate or chaplain, is in point. Here is a 
function with emoluments and no specific legal remedy. 
The right depends upon election, which interests al Ithe 
voters. The subject is of a nature to inflame men's 
passions. Should the Court deny this remedy, the con- 
gregation may be tempted to resort to force. A dispute 
as to who shall preach Christian charity, may well rise 
implacable feuds and animosities, in breach of the public 
peace, to the reproach of government and the scandal 
of religion. Were we to deny the writ, we should f-ut 
Presbyterian Dissenters and their religious worship oj. 
of the protection of the law.'" 

' 20 Pari. Hist. 1020-1092. 

' 3 Burr. 1269 ; HoU. 263 ; Rex v. Barker. 



4i6 REIGN OF GEORGE III. [1780. 

The question having arisen whether, in an action to 
recover penalties for bribery, a Quaker could be admit- 
ted as a witness on his affirmation without taking an 
oath, Lord Mansfield said, — 

" This question is of great importance to all the Qua- 
kers in the kingdom, and to the general administration 
of justice. I wish the affirmation of a Quaker had been 
put on the same footing as an oath in all cases whatso- 
ever ; and I see no reason against it, for the punishment 
of the breach of it is the same. Upon general princi- 
ples I think the affirmation of a Quaker ought to be ad- 
mitted in all cases, as well as the oath of a Jew or a 
Gentoo, or of any other person who thinks himself 
really bound by the mode and form in which he attests. 
But even the limited indulgence which they enjoy was 
obtained with much difficulty and after a long struggle. 
The legislature formerly looked upon Nonconformists as 
criminals ; and Quakers, in particular, as obstinate of- 
fenders. This only served to increase their number. If 
they had been let alone, perhaps they would not have 
come down to these times. The more generous and 
liberal notions of the present age do not look upon real 
scruples in the light of an offense. However, Quakers 
are still excluded from giving evidence in ' criminal 
causes;' and we are to say what was the meaning of the 
legislature by this exclusion. Although it may not be 
possible to give any good reason for the exception, it 
was made and it must be followed. But, being a hard 
positive law, it is not to be extended by construction. 
Now, although bribery is a crime, this action to recover 
penalties for bribery is a civil cause, as much as an ac- 
tion for money had and received. The exception must 
be confined to cases technically criminal. A different 
construction would not only be injurious to Quakers, but 
prejudicial to the rest of the King's subjects who may 
want their testimony." " 

A still nobler opportunity was afforded to Lord Mans- 
field of showing his liberality in matters of religion 

' 7 & 8 w. III. c. 34. 

' Atcheson v. Everett, Cowp. 382. The exception, so modified, continued 
in force above half a century longer ; but if a man is now falsely accused 
of murder, he may escape the gallows by calling a Quaker to prove his in- 
nocence. See q Geo. IV. c. 32 ; 3 & 4 W. IV. c. 49. 



'78o.J LOhD MANSFltLLJ) 417 

when the corporation of the city of London, wishing at 
once to swell their revenues and to punish Dissenters, 
passed a by-law inflicting a heavy pecuniary mulct upon 
freemen who, being elected, should not serve the office 
of sheriff; and then elected a dissenter, who they knew 
would not serve, as he could not take the sacrament ac- 
cordmg to the rites of the Church of England. Ths 
gentleman, being sued for the penalty, pleaded, by way 
of defense, that " he was a Dissenter, and therefore was 
mcapable of serving." This plea was overruled in the 
court in which the action was commenced, but the case 
ultimately came by appeal before the House of Lords. 
Fortunately we have an authentic account of Lord 
Mansfield's judgment, recommending a reversal. It was 
taken down by Dr. Philp Faraceaux, a famous Presbyte- 
rian divine, who was present when it was delivered, and 
his report of it was afterwards revised by Lord Mans- 
field. Although of great length, the whole of it maybe 
perused with delight, but I can only afford to introduce 
a few extracts from it : — 

" There is no usage or custom independent of posi- 
tive law which makes Nonconformity a crime. The eter- 
nal principles of natural religion are part of the common 
law ; the essential principles of revealed religion are 
part of the common law ; — so that any person reviling, 
subverting, or ridiculing them, may be prosecuted at 
common law.' But it cannot be shown from the princi- 
ples of natural or revealed religion that, independent of 
positive law, temporal punishments ought to be in- 
flicted for mere opinions with respect to particular modes 
of worship. Persecution for a sincere, though erroneous, 
conscience is not to be deduced from reason or the fit- 
ness of things. . . . Conscience is not controllable by 
human laws, nor amenable to human tribunals. Perse- 
cution, or attempts to force conscience, will never pro- 
duce conviction, and are only calculated to make hypo- 
crites or martyrs. 

" My Lords, there never was a single instance, trom 
the Saxon times down to our own, in which a man was 
punished for erroneous opinions concerning rights or 

' This, I think, is the true sense of the often-repeated maxim, that " Chris- 
lianity is part and parcel of the common law of England." 
111.— 27. 



4r8 REIGN OF GEORGE III. [1780. 

modes of worship, but upon some positive law. The 
common law of England, which is only common reason 
or usage, knows of no persecutions for mere opinions. 
For atheism, blasphemy, and reviling the Christian re- 
ligion, there have been instances of persons prosecuted 
and punished upon the common law ; but here noncon- 
formity is no sin by the common law; and all positive 
laws, inflicting any pains or penalties for nonconformity 
to the established rites or modes, are repealed by the 
Act of Toleration, and Dissenters are thereby exempted 
from all ecclesiastical censures. What bloodshed and 
confusion have been occasioned from the reign of Henry 
IV., when the first penal statutes were enacted, down to 
the revolution in this kingdom, by laws made to force 
conscience ! There is certainly nothing more unreason- 
able, more inconsistent with the rights of human nature, 
more contrary to the spirit and precepts of the Christian 
religion, more iniquitous and unjust, more impolitic, 
than persecution. It is against natural religion, revealed 
religion, and sound policy. Sad experience and a large 
mind taught that great man, the President De Thou, 
this doctrine. Let any man read the many admirable 
things which, though a papist, he hath dared to advance 
on this subject, in the dedication of his history to Henry 
IV. of France (which I never read without rapture), and 
he will be fully convinced, not only how cruel but how 
impolitic it is to prosecute for religious opinions. There 
was no occasion to revoke the edict of Nantes ; the 
Jesuits needed only to have advised a plan similar to 
that which is contended for in the present case : make 
a law to render them incapable of office ; make another 
to punish them for not serving. If they accept, punish 
them (for it is admitted on all hands, that the defendant, 
in the cause before your Lordships, is prosecutable for 
taking the office upon him). If they accept, punish 
them ; if they refuse, punish them : if they say yes, 
punish them ; if they say no, punish them. My Lords, 
this is a most exquisite dilemma, from which there is no 
escaping; it is a trap a man cannot get out of; — it is as 
bad persecution as that of Procrustes: if they are too 
short, stretch them ; if they are too long, lop them." 
This noble vindication of the rights of conscience pro- 



17S0.J LORD MANSFIELD. 



419 



duced a unanimous reversal of the decree of the Lord 
Mayor's Court, but caused considerable clamor in the 
City ; and Lord Mansfield was set down with many as 
"little better than an infidel." 

What completed his bad name, was his direction to 
the jury in an action brought against a person, alleged 
to be a Roman Catholic priest, for celebrating mass, 
which, as the law then stood, subjected him, if found 
guilty, to a very severe penalty. I must confess that 
the effort made on this occasion to evade an obnoxious 
penal statute can hardly be justified, and that the better 
course would have been to allow it to be enforced, so 
that, its injustice being made manifest, it might more 
speedily be repealed. From the commentaries upon 
the evidence there can be little doubt that it was really 
sufficient to make out the case : — 

Lord Mansfield : "There are here two questions for 
your consideration: 1st. is the defendant a priest? 
2d. Did he say mass? By the statute of Queen Eliza- 
beth it is high treason for any man proved to be a Po- 
pish priest to breathe in this kingdom. By what was 
considered a mild enactment in the reign of William IIL, 
a Popish priest convicted of exercising his functions is 
subject to fine and perpetual imprisonment. But, first, 
he is to be proved to be a priest, for, unless he be a 
priest, he cannot be touched for the enormity of saying 
mass ; and then, unless he be proved to have said mass, 
the crime of being a priest will escape with impunity. 
Now the only witness to the mass is Payne — a very 
illiterate man, who knows nothing of Latin, the lan- 
guage in which it is said : and, moreover, he, as in- 
former, is witness in his own cause ; for, upon conviction, 
he is entitled to ;£'ioo reward. Several others were 
called, but not one of them would venture to swear that 
he saw the defendant say mass. One swore that he 
sprinkled with holy water ; another, that he addressed 
some prayers to the Virgin Mary in English ; another, 
that he heard him preach, and, being asked what the 
sermon was about, observed that " it taught^the people 
that good works were necessary to salvation," a doctrine 
which he looked upon as wholly at variance with the 
Protestant religion ! Then, as to the defendant being 



420 REIGN OF GEORGE III. L1780. 

a priest, you are not to infer that because he preached ; 
for laymen often perform this office with us, and a dea- 
con may preach in the Church of Rome. A deacon may 
be a cardinal,. — if he may not be Pope. A deacon may 
even administer some of their sacraments, and perform 
many of their services , and we do not know that he may 
not elevate the Host — at least I do not know but he 
may, and I am persuaded that you know nothing about 
it. If a deacon may perform all the ceremonies to 
which Payne swears, there is no evidence that the de- 
fendant is a priest. Why do they not call some one 
who was present at his ordination ? You must not infer 
that he is a priest because he said mass, and that he said 
mass because he is a priest." At the Reformation, they 
thought it in some measure necessary to pass these 
penal laws ; for then the Pope had great power, and the 
Jesuits were then a very formidable body. Now the 
Pope has little power, and it seems to grow less every 
day. As for the Jesuits, they are now banished from 
almost every state in Europe. These penal laws were 
not meant to be enforced except at proper seasons, when 
there is a necessity for it ; or, more properly speaking, 
they were not meant to be enforced at all, but were 
merely made in terrorem. Now, when you have consid- 
ered all these things, you will say if the evidence satisfies 
you. Take notice, if you bring him in guilty the pun- 
ishment is very severe ; a dreadful punishment indeed ! 
Nothing less than perpetual imprisonment !"" 

The jury found a verdict of Not Guilty ; but many 
zealous Protestants were much scandalized, and rumors 
were spread that the Chief Justice was not only a Jac- 
obite but a Papist, and some even asserted that he vvas 
a Jesuit in disguise. 

He continued, nevertheless, steadily to support the 
cause of religious liberty ; and when the bill was brought 
forward to repeal so much of the act of William as con- 

' This reminds me of the Judge -.vho, much disliking the game laws, and 
trying an action against a man for using a gun to kill game without being 
qualified, when it had been proved that the defendant, being in a stubble 
field, with a pointer, fired his gun at a covey of partridges, and shot two of 
them, objected that there was no evidence that the gun was loaded with shot, 
and advised the jury 'o conclude that the birds fell down dead from the 
fright. * HoU. p. 176-179. 



lySo.J LORD MANSFIELD. 421 

demns a Popish priest to fine and perpetual imprison- 
ment for saying mass, and disqualifies a Papist to be the 
owner of land by inheritance or purchase, he expressed 
his entire approbation of it, although it passed with so 
little opposition, that there was no occasion for his tak- 
ing any prominent part in supporting it.' 

Measures which touch religious prejudices usually ex- 
cite much clamor when first proposed, but when carried 
through are quietly acquiesced in. This Catholic Relief 
Bill, however, after having been quietly agreed to in 
Parliament, excited a violent ebullition of bigotry almost 
all over Great Britain. The public peace was first dis- 
turbed in Scotland, where intemperate resolutions and 
addresses were voted by the General Assembly of the 
Kirk, dangerous riots ensued, and several Roman Cath- 
olic places of worship were burnt to the ground.' Lord 
George Gordon was the organ in the House of Commons 
of the Scotch anti-popery party, and, in presenting their 
petitions against the recent concessions to the followers 
of Antichrist, describing the people of Scotland as " ripe 
for insurrection and rebellion," and affirmed that " the 
inhabitants fit to bear arms, a few Papists excepted, 
were ready to resist the powers of the Government, and 
had invited him to be their leader." Finally, he declared 
that "the religious constitution of Scotland was sacred 
against any law the Parliament of Great Britain might 
enact for its alteration ; that any such attempt was an 
actual breach of the fundamental conditions on which the 
union of the two kingdoms had been agreed to ; and that 
the Scotch, being an independent nation when they 
entered into that treaty, henceforth resuming their 
ancient rights, would prefer death to slavery, and perish 
with arms in their hands or prevail in the contest." ' 

' See 18 Geo. III. c. 61. Compare this with the trial of a Ronion Cath- 
olic priest before Scroggs, ante, vol. li. p. 261. 

'' The delusion of my countrymen on this occasion may be best understood 
from a proclamation by the lord provost and magistrates of Edinburgh, de- 
claring that " to remove the fears and apprehensions which had distressed 
the minds of many well-meaning people in the metropolis, with rpgard to 
the repeal of the penal statutes against Papists, the public? wert informed 
that the act of parliament passed for that purpose was toially laii^ {in'r^, and 
therefore it was expected that all peaceable subjects would carcOiUy avoid 
connecting them-'selves with any tumultuous assembly for the future." 

• ao Pari. Hist. 622. 



422 REIGN OF GEORGE III. [1780. 

The south soon caught the fanatical flame. Protestant 
clubs were formed in London and in all the great t-iwns 
in England ; and, to oppose Popery with sufficient force, 
"The General Protestant Association " was formed, of 
which Lord George Gordon was chosen president. When 
Parliament again met, he not only inveighed against 
judges, but said, " The people were irritated and exasper- 
ated.being convinced that the King himself was a Papist ; " 
and he averred that " if his Majesty did not keep_ his 
coronation oath, they would do no more than abridge 
his revenue ; they would cut off his head." 

By the unchecked repetition of such ribaldry in de- 
bating societies, which were then the chief instruments 
of agitation, the populace were excited to a high pitch 
of frenzy, and were prepared for any violence. At last 
a " monster petition " to the House of Commons was 
got up against the spread of Popery ; and it was resolved 
that " on Friday, the 2nd of June, the whole body of 
the Protestant Association would assemble in St. 
George's Fields, with blue cockades in their hats, to 
distinguish real Protestants and friends of the petition 
from their enemies." 

At the appointed time the petitioners, in blue 
cockades, mustered 60,000 strong, very near the place 
selected by the Chartists with similar views on the 
memorable loth of April, 1848 ; and they intimated the 
same resolution that " they would cross the Thames by 
one of the bridges, march in procession through the 
City, and present their petition with their own hands." 
They believed that the legislature would be overawed 
by their numbers, and they were determined to resist 
any attempt to control them. The Government, although 
fully aware of their intentions, forbade neither the meet- 
ing nor the procession, — neither stationed soldiers near 
the scene of apprehended danger, nor swore in special 
constables in aid of the parish beadles, who were then 
the only police in the metropolis, — nor took any step 
whatever for the preservation of the public tranquillity, 
more than if there had been an announcement of gambols 
in the streets by a band of morris-dancers. Accordingly 
the procession, headed by Lord George Gordon, crossed 
London Bridge marched through the City, and, before 



«78o.] LORD MANSFIELD. 



423 



the usual hour for the assembl